R. v. Trieu, 2005 CanLII 7884 (ON CA)

Her Majesty the Queen v. Trieu [Indexed as: R. v. Trieu]

74 O.R. (3d) 481

[2005] O.J. No. 1083

Docket: C34705

Court of Appeal for Ontario,

Rosenberg, Moldaver and MacPherson JJ.A.

March 24, 2005

Criminal law -- Evidence -- Hearsay -- Prior inconsistent statement by recanting witness -- N and T arrested for offences related to home invasion and providing videotaped statements implicating accused -- No warning given to N or T about importance of telling truth and statements not under oath -- N and T recanting statements at accused's trial and asserting accused not involved in offences -- Crown seeking to adduce N's and T's prior videotaped statements for truth of contents -- Trial judge admitting both statements for substantive use -- Videotaping of statements and availability of declarants for meaningful cross-examination going most of way to establishing sufficient threshold reliability as provides two of ideal indicia of reliability -- Absence of oath or warning of modest significance in circumstances -- Fact T gave statement after being charged with serious offences and being given rights would have impressed T with solemnity of occasion and importance of telling the tr uth -- Open to trial judge to rely on admissions made by T's counsel during guilt plea confirming material aspects of earlier statement as evidence of threshold reliability -- Trial judge did not err in considering similarities in T's and N's statement when considering threshold reliability of N's statement -- Statements need not be strikingly similar before indicia of reliability given presence of two ideal indicia of reliability -- Trial judge found no collusion between N and T regarding videotaped statements -- Evidence of L confirming aspects of N's statement also relevant when assessing threshold reliability -- Fact N and T may have motive to lie about accused's role properly dealt with by cross-examination at trial -- No error in admitting either videotaped statement for truth of contents -- Appeal from conviction dismissed.

The accused was convicted of offences arising out of a home invasion. He did not take part in the home invasion, which was perpetrated by N, T and a third person. One of the victims, L, claimed that the accused, whom she knew as a family friend, called her just before the home invasion. She believed that he was calling from the lobby of her apartment building. He asked her for her apartment number. Ten minutes later, the robbers forced their way into the apartment. When N and T were arrested, they each gave videotaped statements to the police implicating the accused in the offence. The statements were unsworn and neither N nor T was given a KGB warning, that is, a warning of the consequences of making a false statement. N stated that he met the accused at a doughnut shop on the day of the robbery, that the accused gave him a gun, and that the accused used his cell phone to call the apartment to get the number, which he gave to the robbers. T stated that he thought the accused had planned the robbery because he knew the family. He said that the accused knew which apartment to go to and waited downstairs in a van while T and the other two robbed the apartment. N and T pleaded guilty to offences arising out of the home invasion and admitted that the facts as related by the Crown were substantially correct. Those facts were consistent with the statements to the police and included reference to the accused's involvement. At the accused's trial, N and T recanted the portions of their statements implicating the accused. The trial judge admitted the statements for their truth, holding that both the necessity and reliability threshold [page482] criteria for admissibility under the principled exception to the hearsay rule were met. The accused appealed his conviction.

Held, the appeal should be dismissed.

Per Rosenberg J.A. (concurring in the result): Necessity was not an issue in this case. The issue was reliability. Two indicia and guarantees of reliability were present with respect to both N and T's statements: the statements were videotaped, and defence counsel had the opportunity to cross-examine N and T in front of the triers of fact at trial. While the statements were not made under oath, a striking similarity between the declarants statement to the police and a statement that is substantively admissible can be a substitute for the oath requirement where the declarant is available for cross- examination and where the trier of fact can be assured that both declarants were referring to an actual event and had not colluded or been influenced by other parties. In N's case, both he and the victim L identified the accused as the person who made the call to the apartment prior to the robbery. There was no evidence of any collusion between N and L and there was nothing to show that this pa rt of N's statement came from anything said to him by the police. Accordingly, it was possible to find the additional reliability required to permit substantive use of N's statement, in view of the opportunity to conduct a full and meaningful cross-examination and the fact that the prior statement was videotaped in its entirety. The trial judge did not err in admitting N's statement.

This analysis was not applicable to T's statement. While there were many similarities between T's statement and L's version of the actual robbery, there was no part of the statement that was strikingly similar to any of L's evidence implicating the accused. T did not say that the accused called the apartment. There was also no striking similarity between those parts of T's statement and N's statement implicating the accused. The trial judge found several other factors that compensated for the absence of the oath, including the fact that T had admitted at trial that some parts of the statements were true, that he had pleaded guilty, and he did not claim that he was falsely convicted. However, the guilty plea proceedings did not provide any additional guarantee of reliability as T, at that point, had a strong motive to shift the blame to someone else to receive a reduced sentence. The trial judge also relied on the fact that T was warned of the seriousness of the crimes with which he was charged. Again, this did not enhance the reliability of his statement; it simply made it more likely that he would seek to shift the blame to someone else. It was unnecessary to finally decide whether the trial judge erred in admitting T's statement for its truth, as even if he did err in doing so, the error would not have affected the verdict. This was a proper case for the application of the proviso in s. 686(1)(b)(iii) of the Criminal Code., R.S.C. 1985, c. C-46.

Per Moldaver J.A. (MacPherson J.A. concurring): The trial judge correctly admitted T's statement for the truth of its contents. Of the three "ideal" indicia of reliability -- the oath, presence and cross-examination -- it was only the oath that was missing in this case. Where the other two indicators of reliability are present, the oath has very little burden to shoulder in the threshold reliability assessment. The combination of videotape and availability for cross-examination goes virtually all of the way to providing the triers of fact with the tools they need to adequately assess reliability.

Because the oath has very little burden to carry in these circumstances, the evidence that can appropriately substitute for it need not be overly exacting. Two types of evidence may be considered as appropriate substitutes: (1) evidence from which it can reasonably be inferred that at the time of the making of the statement, the declarant appreciated the solemnity of the occasion and the importance [page483] of telling the truth; and (2) external evidence which is itself reliable and which tends to confirm in a meaningful way the reliability of the material aspects of the out-of-court statement.

With respect to the first type of evidence, there is a distinction between a declarant who has been charged with an offence and one who is merely a witness. People who have been arrested on criminal charges and informed of their rights hardly need to be reminded of the solemnity of the occasion or the importance of telling the truth. When T gave his statement, he knew that he was facing serious charges and he was fully aware of and appreciated all of his rights. This was a tenable substitute to take up the little bit of reliability slack left by the missing oath. The consideration that T may have had a motive to falsely implicate the accused was a matter to be dealt with, not at the admissibility stage, but on cross- examination. Rosenberg J.A. conflated threshold reliability with ultimate reliability.

T's guilty plea and his admission, through his counsel, of facts that tracked the facts in his statement to the police met the external evidence criteria: the guilty plea was reliable evidence which tended to confirm in a meaningful way the reliability of those aspects of T's statement in which he implicated the accused as the mastermind of the home invasion, and therefore constituted external evidence that might legitimately substitute for the oath.

The reasons for admitting T's statement applied equally to N's statement. N and T gave their statements independently of each other, and there was no collusion. A "striking similarity" between T's statement and N's statement or L's statement was not required to make up the little bit of "reliability ground" needed to establish threshold reliability. L's evidence and N's statement were reliable and, when compared with T's statement, they tended to confirm in a meaningful way the aspects of T's statement implicating the accused as the mastermind of the home invasion.

APPEAL by the accused from a conviction by Kruzick J. of the Superior Court of Justice, sitting with a jury, dated July 16, 1999.

R. v. B. (K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740, [1993] S.C.J. No. 22, 148 N.R. 241, 79 C.C.C. (3d) 257, 19 C.R. (4th) 1; R. v. Conway (1997), 1997 2726 (ON CA), 36 O.R. (3d) 579, [1997] O.J. No. 5224, 121 C.C.C. (3d) 397, 13 C.R. (5th) 139 (C.A.); R. v. Diu (2000), 2000 4535 (ON CA), 49 O.R. (3d) 40, [2000] O.J. No. 1770, 144 C.C.C. (3d) 481, 33 C.R. (5th) 203 (C.A.); R. v. Merz (1999), 1999 1647 (ON CA), 46 O.R. (3d) 161, [1999] O.J. No. 4309, 140 C.C.C. (3d) 259, 30 C.R. (5th) 313 (C.A.) [Leave to appeal to S.C.C. refused [2000] S.C.C.A. No. 240, 263 N.R. 391n]; R. v. Smith, 1992 79 (SCC), [1992] 2 S.C.R. 915, [1992] S.C.J. No. 74, 94 D.L.R. (4th) 590, 139 N.R. 323, 75 C.C.C. (3d) 257, 15 C.R. (4th) 133; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, [2000] S.C.J. No. 40, 148 Man. R. (2d) 161, 190 D.L.R. (4th) 591, 258 N.R. 250, 224 W.A.C. 161, [2000] 11 W.W.R. 1, 147 C.C.C. (3d) 449, 36 C.R. (5th) 1; R. v. U. (F.J.), 1995 74 (SCC), [1995] 3 S.C.R. 764, [1995] S.C.J. No. 82, 128 D.L.R. (4th) 121, 186 N.R. 365, 101 C.C.C. (3d) 97, 42 C @@.R. (4th) 133, distd Other cases referred to R. v. Khan, 1990 77 (SCC), [1990] 2 S.C.R. 531, [1990] S.C.J. No. 81, 41 O.A.C. 353, 113 N.R. 53, 59 C.C.C. (3d) 92, 79 C.R. (3d) 1; R. v. S. (A.J.), [2004] A.J. No. 884, 2004 ABCA 262; R. v. Tat (1997), 1997 2234 (ON CA), 35 O.R. (3d) 641, [1997] O.J. No. 3579, 117 C.C.C. (3d) 481, 14 C.R. (5th) 116 (C.A.); R. v. Vongviset, [2004] O.J. No. 52 (C.A.) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(b)(iii) [as am.] Young Offenders Act, R.S.C. 1985, c. Y-1, s. 56 [rep. S.C. 2002, c. 1] [page484] Authorities referred to Layton, D."U. (F.J.): Hearsay, Reliability and Prior Inconsistent Statements Made by Co-Accused" (1999), 41 Crim. L.Q. 345 Morden, J."Evidence -- Proof of Own Witness's Prior Inconsistent Statement Where "Adverse" -- Section 24, Evidence Act (Ont.)" (1962), 40 Can. Bar Rev. 96

Apple Newton-Smith, for appellant. Shelley Hallett, for respondent.

Introduction

1ROSENBERG J.A. (concurring): -- The appellant Tuan Trieu appeals his convictions by a court composed of KruzickáJ. and a jury arising out of a home invasion in April 1998. The appellant did not take part in the home invasion, which was perpetrated by three young men. The prosecution alleged that the appellant, who knew the occupants of the home, masterminded the offences and assisted in their execution. While there was some other evidence to connect the appellant with the home invasion, the prosecution also relied on the contents of statements that two of the perpetrators gave to the police. When the witnesses recanted the portions of their statements implicating the appellant, the trial judge applied the decisions of the Supreme Court of Canada in R. v. B. (K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740, [1993] S.C.J. No. 22, 79 C.C.C. (3d) 257 and R. v. U. (F.J.), 1995 74 (SCC), [1995] 3 S.C.R. 764, [1995] S.C.J. No. 82, 101 C.C.C. (3d) 97 and held that the statements were admissible for their truth.

2This appeal turns on the trial judge's ruling concerning these statements. The police videotaped the statements, but the statements were not taken under oath and the police did not warn the witnesses of the consequences of providing a false statement in terms recommended by Lamer C.J.C. in B. (K.G.). The trial judge found that there were other circumstances sufficient to substitute for absence of the oath and the warning. I agree with the trial judge's conclusion, although not all his reasoning, with respect to one of the witnesses, Nhan Nguyen (Nhan). In my view, Nhan's statement was admissible for its truth by a principled extension of the holding in U. (F.J.). I have some reservations about the trial judge's ruling in respect of the statement of the other witness, a young person, S.T. However, I am satisfied that even if the trial judge erred in admitting S.T.'s statement, no substantial wrong or miscarriage of justice was occasioned and I would dismiss the appeal. [page485]

The Facts

(1) The Home Invasion

The Facts

3On April 9, 1998, three men, Nhan, his brother Nghia Si Nguyen (Nghia) and S.T. entered an apartment in the City of Mississauga occupied by Linda Le (16 years of age), her aunt, her grandfather and her two brothers. Ms. Le knew the appellant as a family friend"Uncle Tuan". The appellant had lived with the family in a prior apartment and had visited this apartment on one occasion. Ms. Le had spoken to the appellant on the telephone on prior occasions and he called her by her Vietnamese name "My".

4On the day of the robbery, someone called the apartment on two occasions. On the first occasion, Ms. Le's aunt answered the telephone and hung up on the caller. On the second occasion, Ms. Le recognized the number shown on the call display as the appellant's number. She picked up the call and heard an echo and static on the line, as though it was coming from the lobby of the building. The caller asked"My, what's your apartment number?" Ms. Le was sure it was the appellant's voice and she told him the apartment number. About ten minutes later there was a knock on the door and the robbers forced their way in. Ms. Le recognized one of the robbers as someone she had seen at a local shopping mall. She had spoken to him on that occasion and he identified himself as "Nhan" and said that he lived with the appellant.

5In the course of the robbery, the perpetrators made statements indicating that they knew something of the family; about the aunt's job and the family's jewellery. The aunt testified that she recognized one of the men from her work. One of the robbers carried a handgun and one carried a knife.

6The police obtained cellular phone records for the number Ms. Le had seen on the call display. Nhan owned the cell phone. The records showed 34 calls from that phone to Ms. Le's apartment in the previous three months.

(2) S.T.

S.T.

7S.T. was arrested on November 16, 1998, six months after the robbery, at a probation office in North York. He gave a statement to the police in which he stated that he thought the appellant had planned the robbery because he knew the family. He said that the appellant knew which apartment to go to and the appellant waited downstairs in a van while he and the other two robbed the apartment.

8S.T.'s statement was videotaped. He was given the usual police cautions for an accused making a statement. He was [page486] informed of his right to counsel but waived his right. As he was a young person, he was also provided with the warnings given to young persons under the former Young Offenders Act, R.S.C. 1985, c. Y-1. He was not given the so- called "KGB warning" [See Note 1 at the end of the document] and he was not under oath. The officer did tell him ôit could be dangerous if you don't tell me the right age and stuff like that".

9At trial, S.T. testified that the appellant was not involved in the robbery. He said he committed the robbery with Nhan and Nghia and no one else was involved. He testified that he lied to the police because the police officer told him that they knew the appellant was involved and if he gave a statement he would get out early. He thought it would look better if someone else was the leader.

10S.T. testified that the three of them went to the apartment building in a car. When they arrived at the building, Nhan made a telephone call and then they went up to the apartment. S.T. admitted to his part in the robbery.

11S.T. had pleaded guilty before the appellant's trial. At the guilty plea proceedings his lawyer said that the facts as related by the Crown were substantially correct. Those facts were consistent with the statement to the police and included reference to the appellant's involvement. S.T. had a record that included convictions arising out of other home invasions.

12The trial judge held that S.T.'s statement to the police was admissible for its truth.

(3) Nhan Si Nguyen

Nhan Si Nguyen

13Nhan was arrested in Vancouver on May 4, 1998, one month after the robbery. At the time, he was in custody on other matters. He told the police that on the day of the robbery he met the appellant at a doughnut shop along with his brother Nghia and S.T. The appellant gave Nghia a gun. Nhan did not know the apartment but the appellant knew the people living there. The appellant used his cell phone to call the apartment and get the number, which he then gave to them.

14Nhan's statement was videotaped but it was not made under oath. He was given the usual police cautions and his right to counsel. The officer taking the statement did not give Nhan the KGB warning since he was an accused.

15At trial, Nhan denied that the appellant was involved in the robbery. Nhan did admit knowing the appellant and said he had [page487] met him about a week before the robbery. He also admitted that a few days before the robbery he met Ms. Le at a mall and they exchanged telephone numbers. He claimed that the robbery was his idea. Before the robbery Nhan, Nghia and S.T. met at a doughnut shop. The appellant was also at the shop, but at a different table.

16Nhan testified that after the meeting at the doughnut shop he went by bus to the apartment building where he met up with the other two. He claimed that he was the one who called the apartment to get the number. He denied giving his cell phone to anyone else that day. Nhan found a gun in the park and gave it to his brother to use in the robbery.

17Nhan testified that he lied to the police about the appellant's involvement because the police beat him and put [him] in a cell for two days. He claimed that the Vietnamese-speaking officer who interpreted for him while he gave his video statement told him that if he did not confess he would be deported to Vietnam. During the statement, the police suggested the appellant's name and he used it. He told the truth about his own involvement and that of the other two perpetrators.

18Nhan had also pleaded guilty prior to the appellant's trial. The statement of facts read in by Crown counsel was consistent with Nhan' statement, including reference to the appellant's involvement. His lawyer stated that those facts were true.

19The police officers involved in the arrests and statement taking denied threatening or assaulting Nhan. The investigating officer who questioned Nhan agreed that after interviewing Ms. Le, he had two suspects in mind -- the appellant and Nhan. The officer conceded that before taking the videotaped statement from Nhan, he had mentioned the appellant's name.

20The trial judge held that Nhan's statement to the police was admissible for its truth.

The Trial Judge's Reasons for Admitting the Statements

The Trial Judge's Reasons for Admitting the Statements

21The trial judge first dealt with the admissibility of S.T.'s statement. The defence conceded that necessity was not an issue since S.T. had recanted that part of his statement implicating the appellant. The trial judge was satisfied that S.T. made the statement freely and voluntarily. He held that there were factors that compensated for the absence of an oath, namely:

-- S.T. admitted that the parts of the statement relating to his own conduct were true.

-- He pleaded guilty and was "serving his sentence with resignation although he appears to protest its duration". [page488]

-- He did not claim to have been falsely convicted.

-- He was provided with a clear and thorough warning under the Young Offenders Act.

-- He was also told that his evidence could be used at someone else's trial.

-- He was clearly warned of the seriousness of the offence with which he was charged.

22The trial judge held that he was satisfied that there was no conversation of consequence before the videotaping began. He also noted that this was not a case where the witness claimed to have no knowledge of the events. S.T. did testify about the robbery and he could be cross-examined about the events and his statement.

23In assessing reliability, the trial judge also stated that he took into account the statements given by Nhan and his brother as well as the evidence of Ms. Le [See Note 2 at the end of the document]. He also relied upon the transcripts of the guilty plea proceedings of the three perpetrators. The trial judge stated that he was satisfied the statements of S.T. "and the other evidence is, for the most part, generally similar and bears similarities". The trial judge referred to the telephone calls to the apartment, the persons in the apartment, the weapons used, the presence of the appellant, the items taken and the events that followed after the robbery. The trial judge held that there was nothing to support the theory that the three perpetrators had colluded with each other.

24The trial judge also stated that in considering reliability, the Supreme Court of Canada has held in R. v. Khan, 1990 77 (SCC), [1990] 2 S.C.R. 531, [1990] S.C.J. No. 81, 59 C.C.C. (3d) 92 that the trial judge "must look at the corroborative features of the evidence".

25The trial judge later dealt with the admissibility of Nhan's statement. He held that the statement was given freely and voluntarily. In much briefer reasons he held that his analysis in [page489] relation to S.T.'s statement should apply to Nhan's statement. Thus, for similar reasons he found that Nhan's statement also met the requirements of necessity and reliability and should be available for substantive use by the jury.

Analysis

(1) Introduction

(a) R. v. B. (K.G.)

Analysis

26As is well known, in R. v. B. (K.G.), the Supreme Court changed the orthodox rule concerning the use of unadopted prior inconsistent statements. Speaking for the majority of the court, Lamer C.J.C. held that in some limited circumstances such a statement would be admissible for its truth. These statements would be admissible if the principles of necessity and reliability underlying the new principled approach to hearsay could be satisfied. In the case of a recanting witness, necessity arose because as Lamer C.J.C. put it at p. 799 S.C.R., p. 296 C.C.C."the recanting witness holds the prior statement, and thus the relevant evidence, 'hostage'". Necessity is not in issue in this case. While the declarants Nhan and S.T. adopted many of the things in their statements, they disavowed those parts implicating the appellant. This case turns on reliability.

27In B. (K.G.), Lamer C.J.C. might have opted for the radical solution that the prior inconsistent statement of a recanting witness should be available for its truth in all cases. He could have held that provided the opposite party has the opportunity to cross-examine the declarant, the statement should be available to the jury for whatever use they might make of it. As John Morden pointed out in his 1962 comment"Evidence -- Proof of Own Witness's Prior Inconsistent Statement Where 'Adverse' -- Section 24, Evidence Act (Ont.)" (1962), 40 Can. Bar Rev. 96 at p. 103, while such a statement is hearsay, since the opposing counsel has the opportunity to cross-examine the witness on the statement "the main reason for the hearsay rule disappears and consequently the possibility of injustice is negatived". (referred to in B. (K.G.), at p. 768 S.C.R., p. 275 C.C.C.).

28Lamer C.J.C. considered at length the arguments for not only changing the orthodox rule but also adopting the radical position. See B. (K.G.) at pp. 756-83 S.C.R., pp. 266-85 C.C.C. He decided against doing so. He held, at p. 781 S.C.R., p. 284 C.C.C., that the orthodox rule of exclusion should be replaced by "a general rule of admissibility for all purposes when certain criteria are met". It is evident from his extended discussion of the question [page490] that Lamer C.J.C. was troubled by the reliability question. As he said at p. 786 S.C.R., p. 288 C.C.C."The reliability concern is sharpened in the case of prior inconsistent statements because the trier of fact is asked to choose between two statements from the same witness, as opposed to other forms of hearsay in which only one account from the declarant is tendered." Or as Doherty J.A. put it in R. v. Tat (1997), 1997 2234 (ON CA), 35 O.R. (3d) 641, [1997] O.J. No. 3579, 117 C.C.C. (3d) 481 (C.A.), at para. 77, where "the statement proffered for its truth contradicts the declarant's testimony, the reliability inquiry must be particularly acute".

29Because of this sharpened concern for reliability, Lamer C.J.C. held in B. (K.G.) at p. 787 S.C.R., p. 288 C.C.C. that the trial judge must look for "additional indicia and guarantees of reliability" to those discussed in the first of the Supreme Court's principled-approach cases, R. v. Khan and R. v. Smith, 1992 79 (SCC), [1992] 2 S.C.R. 915, [1992] S.C.J. No. 74, 75 C.C.C. (3d) 257. It seems to me that while the Chief Justice spoke of additional indicia and guarantees of reliability, his subsequent discussion was very much focused on different indicia and guarantees. Those guarantees focus on the three dangers traditionally associated with admission of hearsay evidence: unlike sworn testimony: (1) the declarant was not under oath when he or she made the statement; (2) the trier of fact was not present when the statement was made and could therefore not assess the declarant's demeanour or have the other advantages a trier of fact gains from having seen and heard the witness; and (3) that the opposing party did not have the opportunity for contemporaneous cross-examination, i.e., the opportunity to cross-examine the declarant at the time the statement was made.

30Having identified the three hearsay dangers, Lamer C.J.C. held that in the context of prior inconsistent statements the analysis need not focus on the inherent reliability of the prior statement, no doubt because it will often not have any such reliability, but on substitutes for the hearsay dangers. As Lamer C.J.C. said at p. 787 S.C.R., p. 288 C.C.C., in the case of prior inconsistent statements "the focus of the inquiry ... is on the comparative reliability of the prior statement and the testimony offered at trial". Thus, while we cannot expect the hearsay statement of a recanting witness to have the trustworthiness of the complaint made by the young victim in R. v. Khan, before the statement is admitted the court must be satisfied that "some other fact or circumstance compensates for, or stands in the stead of the oath, presence and cross-examination" (B. (K.G.), at p. 787 S.C.R., p. 288 C.C.C.).

31In B. (K.G.), Lamer C.J.C. went on to discuss reliability substitutes. He identified what he considered to be the best [page491] substitutes or indicia of reliability. But, he also stated that he did not intend that these ideal indicia should harden into a new category of hearsay [See Note 3 at the end of the document]. There could well be cases where the ideals are not met and yet there are other indicia that would serve as adequate substitutes.

32Substitutes for two of the three hearsay dangers are not in issue here. In B. (K.G.), Lamer C.J.C. held that a complete videotaped record of the statement could substitute for the fact that the triers of fact were not physically present when the statement was taken. In this case, the trial judge was satisfied that all the relevant conversation was recorded in the case of both Nhan and S.T. That is a finding of fact and I see no reasons to set it aside.

33As to the lack of contemporaneous cross-examination, Lamer C.J.C. held that the opportunity to cross-examine in front of the triers of fact at trial was an adequate substitute. Subsequent cases have made the point that this must be a real opportunity. Where the declarant/witness takes the position that he or she knows nothing of the events or the taking of the statement, the opportunity to cross-examine is illusory and does not serve as an adequate substitute. See R. v. Conway (1997), 1997 2726 (ON CA), 36 O.R. (3d) 579, [1997] O.J. No. 5224, 121 C.C.C. (3d) 397 (C.A.), at para. 29. But that was not the case here. Both declarants gave detailed accounts of the planning and execution of the home invasion and of the circumstances surrounding their prior statements.

34Thus, this case turns on the question of substitutes for the oath. In B. (K.G.) at p. 791 S.C.R., p.á291 C.C.C., Lamer C.J.C. identified the "best indicium" of reliability is where the statement is taken "(i) under oath, solemn affirmation, or solemn declaration, and (ii) following the administration of an explicit warning to the witness of his or her amenability to prosecution if it is discovered that he or she has lied". Again, however, he made clear that there could be other substitutes. As he said at p. 792 S.C.R., p. 291 C.C.C."Other circumstances may serve to impress upon the witness the importance of telling the truth, and in so doing provide a high degree of reliability to the statement." Indeed, that would have to be the case since in B. (K.G.) itself the declarants were not under oath and had not been given what is now referred to as the KGB warning. Nevertheless, there must have been something in the circumstances under which the [page492] statements were ta ken to provide a sufficient substitute since the court ordered a new trial where it would be open to the trial judge to "be satisfied on the balance of probabilities that the statements are sufficiently reliable to be substantively admissible" (B. (K.G.) at p. 805 S.C.R., p. 301 C.C.C.).

35In considering whether there are sufficient substitutes for the oath, it seems to me that the inquiry should focus on the reasons Lamer C.J.C. identified at pp. 787-92 S.C.R., pp. 288-91 C.C.C. for insisting on such substitutes in the first place. He identified three reasons:

-- Administration of the oath "may serve to impress on more honest witnesses the seriousness and significance of their statements, especially where they incriminate another person in a criminal investigation" (emphasis added) (p. 789 S.C.R., p. 289 C.C.C.).

-- Presence of an oath will increase the statement's evidentiary value because the trier of fact is not asked to accept unsworn testimony over sworn testimony and if the witness was placed under oath he or she does not have the excuse that unlike their testimony the statement was not taken under oath.

-- Knowledge that the statement was taken under oath "should weigh heavily on the mind of one who considers lying in a statement, or recanting his or her prior statement to lie at trial" because of the penalties for giving false statements (p. 790 S.C.R., p. 290 C.C.C.).

36One other matter that I think bears on the reliability assessment in this case is context. In some respects, the context is very similar to B. (K.G.). In that case, the three recanting witnesses were friends of the accused who were closely associated with the accused in the commission of the crime. The four of them had been involved in an altercation with the victim and the three witnesses later claimed that the accused had confessed that he had been the one who had stabbed the victim. There are, however, differences in this case. Neither Nhan nor S.T. was accompanied by anyone else. They did not consult with counsel before giving their statements. Each of the B. (K.G.) witnesses was accompanied by a parent and/or lawyer. The witnesses that were accompanied by a lawyer would have had the opportunity to obtain legal advice, advice that would presumably have warned the witnesses of the consequences of lying to the police. Further, Nhan and S.T. were under arrest for their parts in t he home invasion. The witnesses in [page493] B. (K.G.) were not under arrest or charged with any offence when they gave their statements. On the other hand, in two of the interviews the police told the witnesses that they were not charged with any offence "at this time" (B. (K.G.), at p. 751 S.C.R., p. 262 C.C.C.).

37Before turning to the application of the B. (K.G.) principles to the two declarants in this case, I want to briefly discuss those principles emerging from the subsequent decisions in U. (F.J.) and R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, [2000] S.C.J. No. 40, 147 C.C.C. (3d) 449 that might apply in this case.

(b) R. v. U. (F.J.)

R. v. U. (F.J.)

38U. (F.J.) would seem to represent a shift in emphasis in the analysis of the principles underlying the B. (K.G.) rule. In his reasons in U. (F.J.), Lamer C.J.C. placed much greater reliance on the fact that the declarant was available for cross-examination. He even plants the suggestion that in some future case, the opportunity to cross-examine may suffice. He said the following at para. 35 of U. (F.J.):

Khan and Smith establish that hearsay evidence will be substantively admissible when it is necessary and sufficiently reliable. ... The primary distinction between B. (K.G.) on the one hand, and Khan and Smith, on the other, is that in B. (K.G.) the declarant is available for cross- examination. This fact alone goes part of the way to ensuring that the reliability criterion for admissibility is met.

[Emphasis added]

And, at para. 45:

It is not necessary in this case to decide if cross- examination alone provides an adequate assurance of threshold reliability to allow substantive admission of prior inconsistent statements.

[Emphasis added]

39At this point, it is for the Supreme Court of Canada to decide that we have learned enough about the application of the principled approach to forego some of the rigours of B. (K.G.). In the meantime, courts must at least apply the principles underlying that decision as modified or extended in U. (F.J.).

40In U. (F.J.), the court was presented with a particularly challenging application of the B. (K.G.) principles. The statement by the recanting witness was not videotaped, was not taken under oath and there was no warning. While, as I have said, in U. (F.J.) LameráC.J.C. placed considerable reliance on cross-examination, consistent with his approach in B. (K.G.), he required some additional indicia of reliability. It seems to me, however, that the focus of his inquiry was analogous to the exercise undertaken in [page494] B. (K.G.); the problem of the comparative reliability of the hearsay statement and the sworn testimony. Perhaps, another way of characterizing the problem is that the judge must be satisfied at the stage of threshold reliability that the triers of fact will be in the position of making a reasoned decision as to which of the witness's two versions of the events to accept.

41In U. (F.J.), Lamer C.J.C. attacked the problem of reliability by using what one author has described as procedural and substantive factors [See Note 4 at the end of the document]. B. (K.G.) was a case concerned with procedural safeguards -- substitutes for the oath, presence and cross-examination. In U. (F.J.), the only procedural safeguard was the opportunity to cross-examine the declarant. The substantive safeguard lay in the fact that the recanting witness's prior statement was strikingly similar to a piece of substantively admissible evidence. This piece of evidence was the accused's own statement that he gave to the police within hours of the statement given by the recanting witness, who was also the alleged victim of the offence.

42In U. (F.J.), Lamer C.J.C. found that threshold reliability could sometimes be established where the witness is available for cross-examination and there is a striking similarity between the declarant's statement to the police and a statement that is substantively admissible, provided the trier of fact could be assured that "the two declarants were both referring to an actual event -- that is, they were both telling the truth" (para. 40). That assurance depended on a demonstration that the two declarants had not colluded or been influenced by other parties. I would suggest that the rationale for this application of B. (K.G.) is that where these conditions are met, and the declarant is available for cross- examination to explain the reasons for the change in position, the trier of fact is in a position to make a reasoned decision as to which of the events should be accepted, and even to accept the unsworn out-of-court version, despite the privileged position of sworn testimony. I wi ll turn to the application of U. (F.J.) to this case below.

(c) R. v. Starr

R. v. Starr

43The trial judge did not have the benefit of the Starr decision and thus he held, relying on some comments in Khan, that it was open to him to bolster the reliability of the statements by looking at the "corroborative features of the evidence". That [page495] broad proposition is suspect in light of Starr where Iacobucci J. held at para. 217 as follows:

At the stage of hearsay admissibility the trial judge should not consider the declarant's general reputation for truthfulness, nor any prior or subsequent statements, consistent or not. These factors do not concern the circumstances of the statement itself. Similarly, I would not consider the presence of corroborating or conflicting evidence.

[Emphasis added]

44That said, in Starr, the declarant was not available for cross-examination. It is apparent, in light of U. (F.J.), which was neither overruled nor disapproved of in Starr, that the prohibition on considering corroborating evidence does not have full application when considering prior inconsistent statements by a witness who is available for cross-examination. The use of the strikingly similar type reasoning in U. (F.J.) to bolster the reliability of the victim's prior statement is a consideration of corroborating evidence. See R. v. Merz (1999), 1999 1647 (ON CA), 46 O.R. (3d) 161, [1999] O.J. No. 4309, 140 C.C.C. (3d) 259 (C.A.), at para. 51 and footnote 2.

(2) Nhan's Statement

Nhan's Statement

45That brings me to the two prior inconsistent statements in issue in this case. I will begin with Nhan's statement. That statement was not taken under circumstances that would produce the ideal substitutes for the hearsay dangers only in that Nhan was not under oath and was not given the warning of the consequences of lying to the police. However, the appellant had an opportunity to fully cross-examine Nhan, and his statement was videotaped. Consistent with the shift in emphasis from B. (K.G.) to U. (F.J.), it would be open to a trial judge to find that these safeguards go a long way to providing the necessary threshold reliability. I do not find it necessary to deal more fully with possible alternative substitutes for the oath since there is present in Nhan's case an additional substantive reliability factor that, in my view, consistent with U. (F.J.), justified the trial judge's decision.

46The circumstance that might assist the trier of fact in deciding whether Nhan's statement or his testimony was the more reliable lies in the remarkable coincidence that Nhan and Ms. Le both identified the appellant as the person who made the call to the apartment prior to the robbery. There is no evidence or suggestion of any collusion between Nhan and Ms. Le. Admittedly, there is an important distinction between this case and U. (F.J.). In the latter, the court was comparing two out-of-court statements whereas here the comparison is between the prior statement and testimony. I do not see that as a principled objection where the [page496] declarant is available for cross-examination. That said, I think it important to deal with a prior decision of this court, R. v. Conway, where a similar argument was rejected.

47There were significant impediments to use of the witness's prior inconsistent statement in Conway. There was no adequate warning, the statement was not videotaped and because the witness testified he had no memory of making the statement and of the relevant events there was no adequate opportunity to cross-examine. This court held that the trial judge erred in holding that the statement could be admitted in accordance with B. (K.G.). On the appeal, Crown counsel sought to support the trial judge's reference by relying on the principles in U. (F.J.). At para. 41 and following, Labrosse J.A. speaking for the court held that U. (F.J.) had no application as there was no other admissible striking similar statement to which to compare the recanting witness's statement and there was no adequate opportunity to cross-examine.

48In Conway, Labrosse J.A. also held that it was not open to the court to roam through the rest of the record to search for confirmatory evidence. The trial judge had not relied upon this other evidence and the reliability determination must be made upon the evidence heard on the voir dire and that part of the trial evidence that the parties agree can be taken into account. Further, such an approach would be inconsistent with what Lamer C.J.C. said in R. v. Smith at p. 933 S.C.R., p. 270 C.C.C., that the criterion of reliability is "a function of the circumstances under which the statement in question was made". This part of Conway, of course, foreshadows the comments by Iacobucci J. in Starr to which I have already referred.

49I do not view my conclusion concerning the use of Ms. Le's testimony concerning the telephone call as inconsistent with this court's decision in R. v. Conway. The parties had agreed that Ms. Le's evidence could be used on the voir dire. It is not apparent that there was any feature of the evidence in Conway that would allow the court to use U. (F.J.)'s strikingly similar-type reasoning. Moreover, the fundamental problem in Conway, the lack of opportunity to conduct a meaningful cross-examination, is not an issue in this case. It seems very clear from U. (F.J.) that striking similarity is no substitute for adequate opportunity to cross-examine. As Lamer C.J.C. said at para. 45 (a portion of which I have already referred to):

I anticipate that instances of statements so strikingly similar as to bolster their reliability will be rare. In keeping with our principled and flexible approach to hearsay, other situations may arise where prior inconsistent statements will be judged substantively admissible, bearing in mind that cross-examination alone provides significant indications of reliability. It is [page497] not necessary in this case to decide if cross-examination alone provides an adequate assurance of threshold reliability to allow substantive admission of prior inconsistent statements.

[Emphasis added]

50In my view, using reasoning similar to that of Lamer C.J.C. in U. (F.J.), it would be possible to find the additional reliability required to permit substantive use of Nhan's statement, in view of the opportunity to conduct a full and meaningful cross-examination and that the prior statement was videotaped in its entirety, provided the trial judge were to find that the information about the telephone call did not come from some extraneous source. It seems to me that the trial judge made such a finding. He held that there was no evidence of collusion between Nhan and the other perpetrators and there is nothing to show that this part of Nhan's statement came from anything said to him by the police.

51My conclusion on this issue is consistent with the holding of the Alberta Court of Appeal when it was faced with a similar problem in R. v. S. (A.J.), [2004] A.J. No. 884, 2004 ABCA 262. In that case, the declarant, the complainant's brother, recanted from a statement he had given to the police in which he described one of the acts of sexual abuse upon the complainant. The only admissible statement for comparison purposes was the complainant's evidence concerning that same event. There was conflicting evidence about whether the complainant's testimony was influenced by prior knowledge of her brother's statement. Since the trial judge had not addressed that issue, the Court of Appeal allowed the accused's appeal and ordered a new trial. I take from those reasons, however, that if that possibility of influence was eliminated, the brother's prior inconsistent statement would have been substantively admissible.

52Accordingly, in my view, the trial judge did not err in admitting Nhan's statement for its truth.

(3) S.T.'s statement

S.T.'s Statement

53I would not apply the U. (F.J.)-type analysis to admit S.T.'s statement. While there are many similarities between his statement and Ms. Le's version of the actual robbery, there is no part of the statement that is strikingly similar to any of Ms. Le's evidence implicating the appellant. In his statement, S.T. does not say that the appellant called the apartment and in principle, it would seem to me that the striking similarity should relate to that part of the statement implicating the appellant. The parts of the statement implicating the appellant are the only parts of the statement that strictly speaking are admissible for their truth since those are the parts that meet the necessity requirement. [page498] The other parts of the statement, while important for context, do not meet the necessity requirement since S.T. did not recant from them. See R. v. Conway at para.á40.

54There is also no striking similarity between those parts of S.T.'s statement and Nhan's statement implicating the appellant. According to S.T., the appellant and the [unknown] owner of the van picked him up and drove him to the apartment. The appellant waited in the van. The appellant knew the apartment, but S.T. does not say how he knew. After the robbery, the appellant and the owner of the van drove him home. The following day, the appellant provided him with some heroin.

55Nhan's version is different. He provides an elaborate story about meeting the appellant in the doughnut shop preparing for the robbery and S.T. coming into the shop and asking to join in the robbery. S.T. made no mention of this meeting and claimed that the appellant picked him up at his home and asked him to join in. Nhan says that the appellant used a cell phone to call the apartment. As indicated, S.T. made no mention of the cell phone. Nhan says that the appellant supplied the gun. S.T. mentions that one of the others had a gun but he did not know who gave it to him. The only common element to the stories is that they both said that the appellant did not take part in the actual robbery. Even here the stories differ. S.T. says that the appellant remained in the van. Nhan says that the appellant remained downstairs. Nhan made no mention of driving S.T. home or of the subsequent heroin transaction.

56The question then is whether there are other indicia of reliability that would warrant admissibility of the statement. This brings me back to the B. (K.G.) analysis and the problem of substitutes for the lack of an oath. The best indicia of reliability were missing. S.T. was not placed under oath and was not warned of the consequences of lying and, in particular, he was not warned about the consequences of falsely implicating someone else. In considering whether there were other substitutes it is important to bear in mind that someone like S.T., who has been arrested for very serious offences, has a powerful motive for minimizing his own culpability and shifting blame to others. Of course, as I have said earlier, that cannot be the end of the inquiry since B. (K.G.) itself presented a similar problem. While the witnesses in that case were not under arrest they were closely associated with the crime and for at least two of them the police left the impression that charges might be laid in the future.

57In looking for substitutes for the oath the court should bear in mind the principles that Lamer C.J.C. referred to in B. (K.G.) and which I have outlined earlier. To repeat, they are the following: [page499]

-- Administration of the oath "may serve to impress on more honest witnesses the seriousness and significance of their statements, especially where they incriminate another person in a criminal investigation" (Emphasis added) (p. 789 S.C.R., p. 289 C.C.C.).

-- Presence of an oath will increase the statement's evidentiary value because the trier of fact is not asked to accept unsworn testimony over sworn testimony and if the witness was placed under oath he or she does not have the excuse that unlike their testimony the statement was not taken under oath.

-- Knowledge that the statement was taken under oath "should weigh heavily on the mind of one who considers lying in a statement, or recanting his or her prior statement to lie at trial" because of the penalties for giving false statements (p. 790 S.C.R., p. 290 C.C.C.).

58I have serious reservations that the circumstances under which S.T.'s statement were taken can offer sufficient substitutes. In his reasons the trial judge referred to a number of circumstances. He noted that S.T. was given the Young Offenders Act warning. However, that warning does not deal with the amenability to prosecution for lying. Former s. 56 of the Young Offenders Act required the police officer to inform the young person of the following:

(i) he is under no obligation to make a statement,

(ii) any statement may be used as evidence in proceedings against him,

(iii) he has the right to consult counsel and a parent or other person, and

(iv) any statement is required to be made in the presence of counsel and any other person consulted in accordance with [s. 56] unless the young person desires otherwise.

59While this warning informs the young person that what he says may be used against him, it does not advise the young person of the risks of lying about the culpability of other persons and does not advise the young person of the criminal consequences of lying. In R. v. Diu (2000), 2000 4535 (ON CA), 49 O.R. (3d) 40, [2000] O.J. No. 1770, 144 C.C.C. (3d) 481 (C.A.), at para. 76, this court held that the police did not adequately warn the declarant when they merely [page500] told him that he could be charged with fabricating evidence, obstructing justice and public mischief. The officers did not explain to the declarant the requisite elements of those offences nor warn him of the possible penalties. They "made no effort to impress upon [the declarant] the serious consequences that would flow in the event he failed to tell the truthö. In this case, the police did not even inform the witnesses of the possible offences with which they could be charged if they lied. The most that was said to S.T. was that ôit coul d be dangerous if you don't tell me the right age and stuff like that". In context, that warning was limited to biographical details like age and was no substitute for the kind of warning referred to in B. (K.G.) and Diu.

60The trial judge also referred to the fact that the police told S.T. that his evidence could be used at someone else's trial. But this information did not warn him of the importance of telling the truth about the other person or the consequences of lying. In this respect, I am also very concerned about the fact that the police officer provided the appellant's name to S.T. as a person implicated in the offences before S.T. mentioned his name.

61As noted above, the trial judge found several other factors that compensated for the absence of the oath, including that, for example, S.T. had admitted at trial that some parts of the statements were true, he had pleaded guilty and he did not claim that he was falsely convicted. The fact that the declarant pleaded guilty, did not claim to have been falsely convicted and confirmed some parts of the statement do not concern the circumstances of the statement itself. I do not view the guilty plea proceedings as providing any additional guarantee of reliability. At that point, S.T. had a strong motive to shift the blame to someone else to receive a reduced sentence. His counsel's submissions at his sentence hearing manifestly bear this out. He made elaborate submissions about S.T.'s minor role in the home invasion and that the appellant masterminded it. S.T. was not under oath when he acknowledged the truth of the facts through his counsel. In Conway, at paras. 21 and 37, this court held that ve ry similar circumstances could not assist in assessing threshold reliability.

62The trial judge also relied on the fact that S.T. was warned of the seriousness of the crimes with which he was charged. I do not see how this enhanced the reliability of his statement. It simply made it more likely that he would seek to shift the blame to someone else. I have viewed the videotape of the statement. Throughout, S.T. attempts to minimize his involvement. For example, he claims that he was asked by the others to join in the robbery and he didn't really want to do it. He admits having a [page501] knife but, contrary to the evidence of Ms. Le, said he immediately put it away. He denied striking the victims or confining them to any room. He attributes the violence to the other perpetrators. His motive for making the statement becomes clear when at the end of the interview he asks the officer to help him.

63For these reasons, despite the resemblance of this case to the facts in B. (K.G.), I have reservations about the trial judge's decision to admit S.T.'s statement for its truth. However, I need not finally decide that issue since I am satisfied that the trial judge's instructions to the jury that this statement was admissible for its truth, even if an error, would not have affected the verdict. I reach that conclusion for a number of reasons.

64First, I start with the obvious point that if the jury believed Nhan and S.T.'s testimony or if that evidence raised a reasonable doubt they would have acquitted the appellant. Both witnesses testified that the appellant was not involved in the home invasion. The jury obviously rejected that evidence. It is apparent that the jury did not believe this part of the witnesses' testimony, nor did it raise a reasonable doubt, probably because of their prior inconsistent statements and the implausibility of much of their testimony. Reasoning in this fashion does not involve substantive use of the statements.

65Second, with Nhan's statement available for substantive use the Crown had a compelling case against the appellant. The striking similarity between that statement and Ms. Le's testimony was powerful circumstantial evidence that the appellant was involved in the robbery and that Nhan's statement, rather than his testimony, was true. Further, in his testimony, Nhan admitted that the appellant was in the doughnut shop when they planned the robbery. That the appellant by chance should be at the same location where a robbery is planned by persons with whom he has a relationship provides another interesting coincidence. As well, Nhan's testimony recanting from his statement was implausible in many respects; to name just one, he denied that the appellant gave his brother the gun, and testified instead that he just found it lying in a park.

66Finally, Ms. Le had reason to correctly identify the appellant's voice and no reason to falsely implicate him, since she knew him as a friend of the family. The cell phone records also tend to implicate the appellant. Ms. Le recognized the number as belonging to the appellant. In fact, the number belonged to Nhan, but Nhan had no reason to be calling the Le apartment on the over 30 times revealed by the cell phone records. But, the appellant, a family friend, did have reason to call the apartment. He had some relationship to Nhan and therefore access to the cell phone. [page502]

67There was thus a substantial body of admissible evidence implicating the appellant. Given this body of evidence, the most important use of S.T.'s statement was its use in neutralizing his testimony that the appellant was not involved. And, this was a permissible use. That the jury might also make substantive use of the statement did not appreciably add to its forensic value, when considered against the other body of evidence.

68Accordingly, in my view, this is a proper case to apply the proviso in s.á686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46 even if the trial judge misdirected the jury as to the use to be made of S.T.'s statement.

Disposition

Disposition

69Accordingly, I would dismiss the appeal.

Reasons of Moldaver J.A.

70MOLDAVER J.A. (MACPHERSON J.A. concurring): -- I have read the reasons of my colleague Rosenberg J.A. and I agree with his proposed disposition of the appeal. Respectfully, however, I do not share his concerns about the admissibility of S.T.'s videotaped statement to the police. For the reasons that follow, I believe that the trial judge correctly admitted S.T.'s statement for the truth of its contents. Accordingly, I would dismiss the appeal without resort to the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C- 46.

The Importance of the Missing Oath [See Note 5 at the end of the document] in the Threshold Reliability Analysis

The Importance of the Missing Oath in the Threshold Reliability Analysis

71With respect to the admissibility of S.T.'s out-of- court statement, my colleague and I separate on the issue of threshold reliability. Specifically, in assessing threshold reliability, we disagree on how much weight the missing oath should carry when, as here, the statement has been fully recorded on videotape and the declarant is available for a meaningful cross-examination. Our disagreement on that issue leads to further disagreement about the type of evidence that may serve as an appropriate substitute for the missing oath.

72In his reasons, my colleague notes that of the three "ideal" indicia of reliability identified in R. v. B. (K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740, [1993] S.C.J. No. 22, 79 C.C.C. (3d) 257 -- the oath, presence and cross-examination -- it is only the oath that is missing here. [page503] He further points out that since it was the Supreme Court of Canada that decided that the oath (or a substitute for it) should be included in the threshold reliability assessment, it is for that court to decide whether "we have learned enough about the application of the principled approach to forego some of the rigours of B. (K.G.)". In the meantime"courts must at least apply the principles underlying that decision as modified or extended in U. (F.J.) [R. v. U. (F.J.), 1995 74 (SCC), [1995] 3 S.C.R. 764, [1995] S.C.J. No. 82, 101 C.C.C. (3d) 97]". I agree.

73That said, even though the oath must be included in the threshold reliability assessment, I am respectfully of the view that the burden it carries is a modest one when, as here, the other two "ideal" reliability indicators are present.

74In so concluding, I acknowledge that in B. (K.G.), Lamer C.J.C. referred to the oath as "the best indicium of reliability ... in the case of prior inconsistent statements". At the same time, however, at p. 794 S.C.R., p. 293 C.C.C. of that decision, he recognized that in the case of prior inconsistent statements"lack of contemporaneous cross- examination" was the "most important of the hearsay dangers" and paradoxically, it was the danger "most easily remedied by the opportunity to cross-examine at trial".

75Importantly, in U. (F.J.) at paras. 37 to 39, Lamer C.J.C. engaged in a fulsome discussion of the importance of cross-examination at trial and the role it played in "assuring that evidence which would otherwise be hearsay is acceptable". His concluding observation at para. 39 is important to my analysis:

Cross-examination alone, therefore, goes a substantial part of the way to ensuring that the reliability of a prior inconsistent statement can be adequately assessed by the trier of fact.

[Emphasis added]

76Accepting that cross-examination "goes a substantial part of the way" towards ensuring that the triers of fact can adequately assess reliability, I believe 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. I say that because in my view, the videotape adds a dimension that is truly valuable to the triers in their assessment of reliability. At p. 792 S.C.R., p. 292 C.C.C. of B. (K.G.), under the heading "Presence", Lamer C.J.C. explained the videotape's significance as a reliability indicator as follows:

Proponents of the orthodox rule emphasize the many verbal and non-verbal cues which triers of fact rely upon in order to assess credibility. When the witness is on the stand, the trier can observe the witness's reaction to questions, [page504] hesitation, degree of commitment to the statement being made, etc. Most importantly, and subsuming all of these factors, the trier can assess the relationship between the interviewer and the witness to observe the extent to which the testimony of the witness is the product of the investigator's questioning. Such subtle observations and cues cannot be gleaned from a transcript, read in court in counsel's monotone, where the atmosphere of the exchange is entirely lost.

All of these indicia of credibility, and therefore reliability, are available to the trier of fact when the witness's prior statement is videotaped. . . .

[Emphasis added]

77Also at p. 793 S.C.R., p. 292 C.C.C., Lamer C.J.C. pointed out that there was a second way in which videotaping served as a reliability indicator:

Not only does the trier of fact have access to the full range of non-verbal indicia of credibility, but there is also a reproduction of the statement which is fully accurate, eliminating the danger of inaccurate recounting which motivates the rule against hearsay evidence. In a very real sense, the evidence ceases to be hearsay in this important respect, since the hearsay declarant is brought before the trier of fact.

[Emphasis added]

78In sum, if cross-examination at trial remedies "the most important of the hearsay dangers" and videotaping brings the declarant before the triers of fact, thereby providing them with "access to the full range of non-verbal indicia of credibility" and "eliminating the danger of inaccurate recording which motivates the rule against hearsay evidence", then the role of the oath as a further reliability indicator must surely be a modest one. Stated simply, I believe that when the other two indicators are present, the oath has very little burden to shoulder in the threshold reliability assessment.

79At para. 35 of his reasons, my colleague has summarized the reasons offered by Lamer C.J.C. in B. (K.G.) for retaining the oath as a reliability indicator in the threshold reliability assessment. At para. 40, he interprets those reasons as indicating that Lamer C.J.C. was concerned with "the problem of the comparative reliability of the hearsay statement and the sworn testimony". Framed somewhat differently, my colleague suggests that "another way of characterizing the problem is that the judge must be satisfied at the stage of threshold reliability that the triers of fact will be in the position of making a reasoned decision as to which of the witness's two versions of the events to accept".

80With respect, I have difficulty understanding how the triers of fact are likely to be in a better position to make a "reasoned" decision as to which of the witnes's two versions to accept when both, instead of one, are made under oath. When both are [page505] made under oath, the triers are left to choose between two versions offered up by a self-confessed perjurer who manifestly holds the oath in low regard, if not utter disdain. How, in those circumstances, the presence of an oath can assist the triers in assessing the reliability of a declarant's out-of-court statement escapes me.

81Moreover, when the other two reliability indicators are present, I believe that we give too little credit to jurors when we assume that they will be less likely to make a reasoned decision as to which of two versions to accept when one is under oath and the other is not. The jurors will have seen the declarant testifying under oath and subjected to vigorous cross-examination. By itself, that is likely to provide them with most, if not all of the information they need to make a reasoned decision. Added to this, if the out-of-court statement is unsworn, the trial judge will instruct the jurors that they may take that into account in assessing its weight and in deciding whether it can safely be relied upon to support a conviction. Surely that is something the jurors can understand and evaluate in arriving at a "reasoned" decision, just the same as they could if both versions were given under oath and they were told to proceed with caution before relying on the word of an admitted perjurer to convict.

82Manifestly, when one version is under oath and the other is not, the possibility exists that an accused will be convicted on unsworn evidence. The other scenario, however, leaves it open for an accused to be convicted on the evidence of an admitted perjurer. As between the two, I have difficulty appreciating the overriding policy consideration that renders one acceptable and the other not.

83I make these observations not with a view to denying the oath its place in the threshold reliability assessment, but to explain why I consider its absence to be of marginal significance when the other two "ideal" reliability indicators are present. I do so as well because I respectfully question how valuable the oath truly is in addressing the "reliability problem" that my colleague concludes it is meant to address, namely: "that the triers of fact will be in the position of making a reasoned decision as to which of the witness's two versions of the events to accept". That conclusion becomes important because it informs my colleague's view concerning the type of evidence that can appropriately be substituted for the oath. It is to that issue that I now turn.

The Type of Evidence that Can Substitute for the Oath

The Type of Evidence that Can Substitute for the Oath

84As I indicated at the outset, the approach I take to the type of evidence that can substitute for the oath hinges largely on [page506] my belief that in cases such as this, where the prior inconsistent statement has been videotaped and the declarant is available for meaningful cross-examination, the role of the oath in the threshold reliability assessment is a modest one. Because it has such little weight to carry in these circumstances, the evidence that can appropriately substitute for it need not be overly exacting.

85In my view, two types of evidence may be considered as appropriate substitutes. They are: (1) evidence from which it can reasonably be inferred that at the time of the making of the statement, the declarant appreciated the solemnity of the occasion and the importance of telling the truth (the B. (K.G.) model); and (2) external evidence which is itself reliable and which tends to confirm, in a meaningful way, the reliability of the material aspects of the out-of-court statement (the U. (F.J.) model).

(1) Evidence surrounding the making of the statement

Evidence Surrounding the Making of the Statement

86Commencing with evidence surrounding the making of the statement that can appropriately substitute for the oath, I take my lead from R. v. B. (K.G.) where, in his discussion about such evidence at p. 792 S.C.R., p. 291 C.C.C., Lamer C.J.C. stated:

It follows from Smith that there may be situations in which the trial judge concludes that an appropriate substitute for the oath is established and that notwithstanding the absence of an oath the statement is reliable. Other circumstances may serve to impress upon the witness the importance of telling the truth, and in so doing provide a high degree of reliability to the statement.

[Emphasis added]

87I view that statement as significant for several reasons. First, in considering the type of evidence surrounding the making of the statement that can substitute for the oath, it explains the problem that the oath is designed to address: namely, the need to ensure that the witness understands "the importance of telling the truth". That differs from my colleague's perception of the problem (and thus the type of evidence that may serve as a substitute): namely, the need to ensure that the triers of fact are able to make a reasoned decision as to which of the witness's two versions of the event to accept.

88Second, as that passage and other passages from B. (K.G.) make clear, in discussing the oath and substitutes for it Lamer C.J.C. was referring to persons involved as potential witnesses to a crime, not persons charged with a crime. I am aware of no decision from the Supreme Court of Canada in which the oath is discussed in the context of someone who is charged with an offence [page507] and who chooses to provide the police with a statement after being informed of his or her rights [See Note 6 at the end of the document].

89While I cannot be certain, there may be a simple explanation for that. People who have been arrested on criminal charges and informed of their rights hardly need to be reminded of the solemnity of the occasion or the importance of telling the truth. That distinguishes them from ordinary witnesses who, in many instances, may believe that they have nothing to gain or lose in the process or, alternatively, that as witnesses they are immune from criminal liability. In such cases, as Lamer C.J.C. points out, the oath is meant to bring home to them the solemnity of the occasion and the importance of telling the truth. (See also R. v. Diu (2000), 2000 4535 (ON CA), 49 O.R. (3d) 40, [2000] O.J. No. 1770, 144 C.C.C. (3d) 481 (C.A.), at para. 76 in which the oath is tied to the solemnity of the occasion and the need to convey this to the declarant.)

90That said, I recognize that by itself, being charged with a criminal offence may not be a perfect substitute for the oath. In the best of all possible worlds, if it were possible to obtain sworn statements from accused persons upon threat of severe criminal sanctions should they provide false information [See Note 7 at the end of the document] (the feasibility of which I strongly doubt), that would be ideal for threshold reliability purposes. In the present case, however, we are not concerned with the ideal. What we need is a tenable substitute to take up the little bit of reliability slack left by the missing oath. In my view, that substitute existed here by reason of the fact that when S.T. gave his statement, he knew that he was facing serious criminal charges and he was fully aware of and appreciated all of his rights. That is clear on his videotape. If S.T. were of a mind to tell the truth, the importance of doing so in the circumstances could hardly have escaped him.

91In that sense, the facts here differ from those in R. v. Conway (1997), 1997 2726 (ON CA), 36 O.R. (3d) 579, [1997] O.J. No. 5224, 121 C.C.C. (3d) 397 (C.A.) [page508] and R. v. Diu, supra, to which my colleague makes reference. In both of those cases, the declarant was a witness, not an accused. Moreover, in Conway, the out-of-court statement was not videotaped and the declarant was not available for meaningful cross-examination. In Diu, although the statement was videotaped, the declarant was not available for meaningful cross-examination.

92That brings me to my colleague's overriding concern that "in considering whether there were other substitutes [for the missing oath] it is important to bear in mind that someone like S.T., who has been arrested for very serious offences, has a powerful motive for minimizing his own culpability and shifting blame to others". As I understand my colleague, he regards S.T.'s apparent motive to fabricate as a significant reason for rejecting the trial judge's finding that the circumstances surrounding the taking of his statement can serve as an appropriate substitute for the oath.

93With respect, I disagree with this aspect of my colleague's analysis. I do so not because I doubt that S.T. had an apparent motive to falsely implicate the appellant; nor that a motive to fabricate is irrelevant in the threshold reliability analysis. I simply believe that when a declarant is available for meaningful cross-examination, the place to deal with motive is in the cross-examination.

94Cross-examination is the mainstay of our adversarial system. It is the device we use to get at the truth. The ability to engage in meaningful cross-examination distinguishes this case from cases such as R. v. Merz [See Note 8 at the end fo the document], R. v. Starr [See Note 9 at the end of the document] and R. v. Smith [See Note 10 at the end of the document] where the declarants had an apparent motive to fabricate and were not available for cross-examination.

95In approaching the matter as he does, I believe that my colleague conflates threshold reliability with ultimate reliability. If not, then I fail to see how a statement made by a declarant with an apparent motive to fabricate could ever be admitted for the truth of its contents, oath or no oath. With respect, I do not understand that to be the law.

(2) External evidence

External Evidence

96As my colleague points out, external evidence may, in some instances, constitute an appropriate substitute for the missing [page509] oath. Indeed, on that basis, using U. (F.J.) as a model, he concludes that Nhan's statement was properly admitted for the truth of its contents. By contrast, he rejects that model in S.T.'s case. Further, he does not accept that S.T.'s guilty plea and the proceedings surrounding it can provide "any additional guarantee of reliability" sufficient to overcome the missing oath.

97With respect, I disagree with my colleague on both counts. Again, the gap that separates us stems from our differing views as to the significance of the oath in the threshold reliability assessment. Because I perceive the oath's role to be a modest one, my search for substitute evidence is considerably less exacting than that of my colleague. Whereas my colleague would appear to require a "perfect substitute", on my analysis all that is required is evidence which is itself reliable and which tends to confirm, in a meaningful way, the material aspects of the out-of-court statement.

(a) S.T.'s guilty plea

S.T.'s Guilty Plea

98In my view, S.T.'s guilty plea and the proceedings surrounding it meet the external evidence criteria. Through his counsel, S.T. admitted facts on his guilty plea that tracked the facts in his statement to the police in which he implicated the appellant as the mastermind of the home invasion. The solemnity of the occasion could hardly have been lost on S.T. He knew that he was pleading guilty to serious crimes and he knew that he could go to jail for a very long period of time.

99In my view, it can be taken as a given that S.T.'s counsel would have explained to him the need to be honest and forthright with the court, not only in terms of his role in the home invasion but the role of others as well. He would have been aware that any attempt on his part to willfully mislead the court could prove disastrous. Apart from raising the possibility of further criminal charges, his duplicity would be seen as an aggravating feature and, in all likelihood, lead to a much more severe sentence.

100Accordingly, I am satisfied that the guilty plea was reliable evidence which tended to confirm in a meaningful way the reliability of those aspects of S.T.'s statement in which he implicated the appellant as the mastermind of the home invasion. It therefore constitutes external evidence that may legitimately substitute for the oath.

101My colleague rejects the guilty plea as an appropriate substitute because at that point"S.T. had a strong motive to shift the blame to someone else to receive a reduced sentence" and the submissions made by his counsel "bear this out".

102Again, I disagree with my colleague. As indicated, S.T.'s motive was something that could be dealt with in cross- examination [page510] and considered by the trial judge, along with the rest of the evidence, in determining whether his statement was sufficiently reliable to warrant its reception as original evidence.

103My colleague finds support for his position in R. v. Conway, supra. Specifically, he refers to paras. 21 and 37 of that decision. Respectfully, I do not share his view.

104At issue in Conway was the substantive admissibility of an out-of-court statement made on December 11, 1994 by a witness named Jardine. In his statement, which was neither videotaped nor given under oath, Jardine implicated Conway and his co-accused in the murder for which they were charged. One day later, on December 12, Jardine was asked by the police to swear under oath that his December 11th statement was true. He was also asked to repeat it on videotape. He refused both requests but reportedly stated"I wrote the statement, I signed it, it's all the truth."

105At the preliminary hearing, Jardine acknowledged under oath that he had made the December 11th statement but he did not acknowledge the truth of its contents.

106At trial, the trial judge admitted Jardine's December 11th statement as original evidence. On appeal, this court held that he erred in doing so.

107One of the issues on appeal was whether Jardine's testimony at the preliminary hearing, in which he confirmed that he had made the December 11th statement, could be used as a substitute for the missing oath. At para. 21 of the decision, reproduced below, this court provided several reasons for holding that it could not, the most important being that "there was no evidence that Jardine adopted the statement or said that it was true":

It was argued by the Crown that Jardine's testimony at the preliminary inquiry provided a satisfactory substitute for an oath. On the second voir dire, a police officer testified that he was present at the preliminary inquiry when Jardine, who had been shown the December 11 statement, said under oath that he had given that statement to the police. It was argued that this acknowledgement "clothed the statement with the sanctity of an oath". Jardine was not cross-examined on the evidence that he had given on the preliminary inquiry. The transcript of the preliminary inquiry was never, at any time, filed as an exhibit in the proceedings. More importantly, there was no evidence that Jardine adopted the statement or said that it was true. The police officer's evidence that Jardine stated that he had given the statement to the police, without anything more, cannot operate as a substitute for an oath. The Crown conceded that it could have applied to have the transcript of the preliminary hearin g filed pursuant to s. 715 of the Criminal Code: see R. v. Hawkins, 1996 154 (SCC), [1996] 3 S.C.R. 1043, 111 C.C.C. (3d) 129 ("Hawkins"). It is reasonable to assume that although this procedure was available to the Crown, the contents of the transcript did not permit the Crown to [page511] achieve the same result as the admissibility of the statement for the truth of its contents.

[Emphasis added]

108That is a far cry from the present case. In his guilty plea, S.T. admitted publicly, in a court of law, to facts that tracked his statement to the police implicating the appellant as the mastermind of the home invasion. While it is true that S.T.'s admission was not made under oath, it was made in circumstances where the solemnity of the occasion and the need to be honest and forthright could hardly have been more apparent.

109Another issue in Conway was whether the trial judge erred in holding that Jardine's December 12th assertion of the truth of his December 11th statement justified his "refusal to be sworn or to provide a videotaped statement". At para. 37, reproduced below, this court held that "the subsequent affirmation cannot increase the reliability of the statement":

The trial judge also relied on Jardine's assertion of the truth of his December 11, 1994 statement to justify the refusal to be sworn or to provide a videotaped statement. This subsequent affirmation cannot increase the reliability of the statement.

110While I do not doubt the correctness of that finding, I fail to see its relevance to this case. At all material times, Jardine was a witness, not an accused. His refusal on December 12th to be sworn and give a videotaped statement raised serious concerns about the reliability of his December 11th statement. His bald assertion that his December 11th statement was true did little, if anything, to make up for his refusal to be sworn and videotaped. In his dealings with the police as a witness on December 12th, the solemnity of the occasion and the need to tell the truth may not have been apparent to him.

111Above all else, however, Conway must be viewed in context. Apart from the missing oath, Jardine's December 11th statement was not videotaped and, more importantly, he was not available at trial for meaningful cross-examination. Manifestly, those circumstances call for a much more rigorous and exacting assessment of evidence put forward as a substitute for the various missing reliability indicators.

112In the present case, unlike Jardine, S.T. was an accused, not a witness. He did not refuse to give his statement under oath; he was not asked to do so. He willingly agreed to be videotaped and, most importantly, he was available for meaningful cross-examination. In the circumstances, for reasons already stated, I am satisfied that his guilty plea could appropriately serve as a substitute for the missing oath. [page512]

(b) Similarity of S.T.'s statement to Nhan's statement and Ms. Le's evidence

Similarity of S.T.'s Statement to Nhan's Statement and Ms. Le's Evidence

113Like my colleague, I agree that Nhan's out-of-court statement was properly admitted. As is obvious, I would have admitted it on a much wider basis than my colleague. My reasons for admitting S.T.'s statement apply equally to Nhan's statement.

114In Nhan's statement to the police, he implicated the appellant as the mastermind of the home invasion. According to Nhan, the appellant formulated the plan to invade Ms.áL'Es apartment. He knew what building she lived in but because he did not know her apartment number, he used a cell phone and obtained that information. He then waited in the lobby while the others carried out the home invasion. According to Ms.áLe, the appellant called her shortly before the home invasion and she provided him with her apartment number. It sounded to her as though the call had been made from the lobby of her building. She knew the appellant as "Uncle Tuan".

115In his statement to the police, S.T. said that the appellant drove him and the others to Ms. Le's apartment building. The appellant knew the building in which Ms. Le lived. S.T. could not recall whether the appellant used a phone before he (S.T.) and his two cohorts went up to Ms. Le's apartment. The appellant did, however, tell S.T. and the others what building to enter and what apartment to go to. S.T. stated that the appellant was in the van when he and the others entered the building. He confirmed that the appellant did not enter Ms. Le's apartment and that he did not physically take part in the home invasion. While in the apartment, a little girl asked if the appellant had told them "to come up here". S.T. also stated that although he could not be sure, he thought that the occupants of the apartment might be the appellant's aunt and uncle.

116The trial judge found as a fact that Nhan and S.T. gave their statements independently of each other and he ruled out collusion as a non-issue.

117Against that backdrop, my colleague refuses to apply a "U. (F.J.)-type analysis" to admit S.T's statement because S.T.'s statement was not "strikingly similar to any of Ms. Le's evidence implicating the appellant", nor was there any "striking similarity between those parts of S.T.'s statement and Nhan's statement implicating the appellant". In his careful analysis, my colleague details the differences between Nhan's statement and S.T.'s statement with a view to showing that their statements are not "strikingly similar".

118Striking similarity is the test that Lamer C.J.C. used in U. (F.J.). He did so in a case where the out-of-court statement in [page513] issue was not taken under oath or videotaped but where the declarant was available for meaningful cross-examination. With two of the three "ideal" reliability indicators missing, Lamer C.J.C. determined that the comparative statements must be strikingly similar before they could be used as a substitute for the two missing reliability indicators.

119If that were the situation here, I might well agree with my colleague's analysis. But it is not. S.T.'s statement was fully videotaped. I have already explained why "presence" is an important reliability indicator and I do not propose to repeat my observations. They are found at paras. 76 and 77 above.

120In U. (F.J.)"presence" was missing. Accordingly, compared to this case, more "reliability ground" had to be made up to reach the threshold reliability mark. In the circumstances, Lamer C.J.C. determined that this could only be accomplished if the comparative statements were "strikingly similar".

121In the instant case, I do not believe that striking similarity is required to make up the little bit of "reliability ground" needed to establish threshold reliability. Absent collusion, it defies common sense and logic to believe that S.T. would intuitively know that the appellant master- minded the home invasion, that he directed S.T. and the others to Ms. Le's apartment building and her apartment, that he did not go up to Ms. Le's apartment or participate in the actual home invasion and that he was related in some way to the occupants of the apartment. S.T.'s statement may not be a perfect fit with Nhan's statement and Ms. Le's evidence but, in my view, it is sufficient to achieve the added bit of reliability needed to make up for the missing oath.

122In sum, using a modified U. (F.J.) model, I am satisfied that the external evidence satisfies the test for substitute evidence. Ms. Le's evidence and Nhan's statement are reliable and, when compared with S.T.'s statement, they tend to confirm in a meaningful way the aspects of S.T.'s statement implicating the appellant as the mastermind of the home invasion.

Conclusion

Conclusion

123The trial judge was correct in admitting Nhan's statement and S.T.'s statement for the truth of their contents. In both cases, there were internal and external reliability indicators that could legitimately serve as substitutes for the missing oaths. Accordingly, I would dismiss the appeal.

Appeal dismissed. [page514]

Notes

Note 1: The "KGB warning" has become a short form for the warnings that Lamer C.J.C. suggested in B. (K.G.) should be given to a witness. I will discuss the contents of that warning below.

Note 2: The defence agreed that the trial judge could rely on portions of the trial that had been heard up to that point for the purposes of the voir dire. I do not read that agreement as a concession that the evidence could be properly taken into account, only that the defence would not erect a technical barrier to the use of the evidence. For example, defence counsel made extensive reference to this court's decision in R. v. Conway (1997), 1997 2726 (ON CA), 36 O.R. (3d) 579, [1997] O.J. No. 5224, 121 C.C.C. (3d) 397 (C.A.). which holds that the court may not rely on corroborative evidence at the stage of threshold reliability.

Note 3: In U. (F.J.), supra, Lamer C.J.C. reiterated that the requirements of necessity and reliability are to be "interpreted flexibly, taking account of the circumstances of the case and ensuring that our new approach to hearsay does not itself become a rigid pigeon-holing analysis" (para. 35).

Note 4: David Layton"U. (F.J.): Hearsay, Reliability and Prior Inconsistent Statements Made by Co-Accused" (1999), 41 Crim. L.Q. 345 and 501, at p. 368.

Note 5: When I refer to the "oath", I mean the oath, solemn declaration or solemn affirmation and the warnings associated with each.

Note 6: The only decision from this court involving an "accused" declarant is R. v. Vongviset, [2004] O.J. No. 52 (C.A.). In that case, the trial judge concluded that an unsworn prior inconsistent statement could be admitted for the truth of its contents because, among other things, the declarant was an accused when he made the statement and therefore unlike an ordinary witness, after being given his rights, he would have appreciated the importance of implicating himself in a criminal offence. In a brief endorsement, without commenting specifically on that aspect of the trial judge's reasons, this court held that "the evidence demonstrated the appropriate level of reliability and the trial judge did not err in admitting it as to the truth of its contents".

Note 7: For the present purposes, I need not decide whether a statement taken under those circumstances would meet the test for voluntariness.

Note 8: (1999), 1999 1647 (ON CA), 46 O.R. (3d) 161, [1999] O.J. No. 4309, 140 C.C.C. (3d) 259 (C.A.).

Note 9: 2000 SCC 40, [2000] 2 S.C.R. 144, [2000] S.C.J. No. 40, 147 C.C.C. (3d) 449.

Note 10: 1992 79 (SCC), [1992] 2 S.C.R. 915, [1992] S.C.J. No. 74, 75 C.C.C. (3d) 257.