COURT OF APPEAL FOR ONTARIO
Sharpe, Gillese and Benotto JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Justin Alexander and Thomas Stephens
Appellants
Daniel C. Santoro and Angela Ruffo, for the appellant Justin Alexander
Jill R. Presser and Anne Marie Morphew, for the appellant Thomas Stephens
Joanne Stuart, for the respondent
Heard: March 5, 2015
On appeal from the conviction entered on February 12, 2013, and the sentence imposed on May 15, 2013, by Justice John R. Sproat of the Superior Court of Justice, sitting with a jury.
BY THE COURT:
1The appellants were convicted of a drug-related kidnapping (three counts) and robbery (two counts). They raise several grounds of appeal related to rulings made by the trial judge arising from the evidence of two recanting witnesses.
2K.M., the girlfriend of the appellant Stephens at the time of the incident, was initially charged as a party to the kidnapping. Those charges were stayed by the Crown after she gave a sworn videotaped statement inculpating the appellants. The Crown called K.M. as a witness at trial and she gave evidence in her examination-in-chief consistent with the videotaped statement. However, at the conclusion of the examination-in-chief and throughout her cross-examination, K.M. recanted the videotaped statement and her testimony-in-chief, explaining that she implicated the appellants because of threats from the police and from a gang purportedly associated with the alleged victims of the kidnapping. She insisted that there had been no kidnapping. The trial judge permitted Crown counsel to cross-examine K.M. as an adverse witness during re-examination.
3The appellants submit that the trial judge erred by ruling that the videotaped statement could be admitted for the truth of its contents pursuant to R. v. K.G.B., 1993 116 (SCC), [1993] 1 S.C.R. 740. The appellants submit further that the trial judge erred by refusing to permit defence counsel the opportunity to cross-examine K.M. on the K.G.B. statement after it had been admitted for its truth.
4Another Crown witness, B.K., was also initially charged in the kidnapping. Before the appellants’ trial, B.K. struck a deal with the Crown: B.K. would plead guilty to kidnapping one of the purported victims and sign an agreed statement of facts inculpating the appellants in exchange for the Crown taking a joint position on a three-year sentence. At the appellants’ trial, B.K. gave a version of the events inconsistent with the agreed statement of facts filed on his guilty plea. His testimony did not inculpate the appellants. B.K. also explained that he had implicated the appellants in his guilty plea because of threats he had received from the police and from the purported victims. The Crown successfully applied to cross-examine B.K. on the agreed statement of facts. The trial judge also ruled that the proceedings on his guilty plea and the agreed statement of facts were admissible for the truth of their contents. The appellants submit that he erred in admitting the entire record of guilty plea proceedings.
5The trial crown, obviously upset by the conduct of these recanting witnesses, made certain statements in the presence of the jury suggesting that K.M. and B.K. were recanting because they had been intimidated. In the case of K.M., the Crown implied that associates of the appellants were in the courtroom and influencing the witness. The trial judge dismissed the appellants’ motion for a mistrial.
6The appellants raise the following grounds of appeal:
The trial judge erred by admitting K.M.’s videotaped statement for the truth of its contents;
The trial judge erred by refusing to permit defence counsel to cross-examine K.M. again after her videotaped statement was entered for its truth;
The trial judge erred by admitting the proceedings on B.K.’s guilty plea and the agreed statement of facts for the truth of their contents;
The trial judge erred by dismissing the defence motion for a mistrial based on the impugned comments of the trial Crown;
The appellant Stephens seeks leave to appeal his sentence.
7We have concluded that these appeals must be allowed and a new trial ordered on grounds two and three. Accordingly, we find it unnecessary to determine the remaining grounds.
The trial judge erred by refusing to permit defence counsel to cross-examine K.M. on her videotaped statement
8K.M’s videotaped statement was not admitted for the truth of its contents until after the examination-in-chief, cross-examination, and re-examination had been completed. Assuming, without deciding, that the trial judge properly admitted K.M.’s videotaped statement, the trial judge erred by refusing to permit defence counsel to cross-examine her on that statement after it had been admitted.
9The trial judge ruled that defence counsel should have anticipated that the Crown would introduce the statement under the K.G.B. principle and should have conducted their initial cross-examinations accordingly. He wrote, at para. 13 of his trial rulings, that the defence “also knew that any attempt to recall [K.M.] following her re-examination, and to cross-examine her further, was at best unclear in law”.
10We disagree. It was clearly on the cards that the Crown would seek to have the statement introduced for its truth. However, it would put defence counsel in an awkward if not impossible position to require them to conduct their cross-examinations in anticipation of a successful K.G.B. application. Defence counsel were entitled to proceed on the regular basis, namely that if the Crown adduced further evidence from a witness, they would be permitted further cross-examination on that evidence.
11In our view, the proposition that the defence had the right to conduct the cross-examination on the K.G.B. statement after it had been introduced for its truth is well-established in the case law: see R. v. Duong, 2007 ONCA 68, 84 O.R. (3d) 515, at paras. 58-59.
12In K.G.B, at p. 794, Lamer J. observed for the majority that in the case of prior inconsistent statements, the most important hearsay danger, namely the lack of contemporaneous cross-examination, is “also the most easily remedied by the opportunity to cross-examine at trial.” At p. 796, in summarizing the reliability requirement of the new exception to the rule against hearsay, Lamer J. identified the importance of “a full opportunity to cross-examine the witness respecting the statement”.
13In denying the defence the right to cross-examine K.M. after her police statement was entered for the truth of its contents, the trial judge stripped away the most important circumstantial guarantee of the statement’s reliability.
14We also disagree with the trial judge’s second reason for refusing to permit cross-examination, namely that defence counsel had already covered the necessary ground and that any further examination would serve no useful purpose. We recognize that this was a difficult trial with many twists and turns and that trial judges have the discretion to control the proceedings in their own courtroom. However, there were many details in K.M.’s police statement that had not been adduced by the Crown in examination-in-chief or in re-examination. The defence was also entitled to cross-examine K.M. on why she said what she did in the police statement. More generally, it was not for the trial judge to speculate as to whether the defence would benefit from cross-examination on the police statement. Cross-examination was crucial for the reliability of the statement under K.G.B. and, as this court reiterated in Duong, at para. 22, “The right of the defence to cross-examine witnesses for the prosecution is fundamental to our adversarial system of justice”. Counsel do not have to justify their right to cross-examine.
15Nor do we accept the trial judge’s third reason for refusing cross-examination, namely that as K.M. was in custody, having been arrested for perjury immediately after her testimony concluded, her courtroom demeanor would be affected by the fact that she had been arrested. We agree with the appellants that it was unfair to use the Crown’s decision to arrest K.M. as a reason for why K.M. could not be recalled.
The trial judge erred by admitting the proceedings on B.K.’s guilty plea and the agreed statement of facts for the truth of their contents
16The trial judge made this ruling on the basis of this court’s judgment in R. v. Youvarajah, 2011 ONCA 654, 107 O.R. (3d) 401. In 2013 SCC 41, [2013] 2 S.C.R. 720, a majority of the Supreme Court reversed that judgment. The trial judge did not have the benefit of the Supreme Court’s Youvarajah decision. We agree with the submission that paragraphs 33 and 54 of the Supreme Court’s judgment govern this case:
In light of the trial judge's obligation to act as evidentiary gatekeeper, I turn first to the specific hearsay dangers posed by the prior inconsistent statement in this case as noted by the trial judge. In the context of the plea bargain, D.S. had a strong incentive to minimize his role in the crime and to shift responsibility to the appellant, a co-accused, in order to obtain a favourable outcome. There was no opportunity to observe the demeanour of D.S. or his own choice of words, as the ASF was drafted by counsel and was not spontaneous. When D.S. asserted solicitor-client privilege, the ability to cross-examine was curtailed.
Given the nature of the hearsay dangers in this particular case, the trial judge did not err in concluding that nothing short of full cross-examination could overcome them. Here, the cross-examination at trial would be significantly limited by the claim of solicitor-client privilege. The statement was not videotaped. There had been no oath or affirmation when the statement was made. The transcript of the guilty plea proceedings established the words of the prior statements but was not a suitable substitute to assess D.S.'s demeanour and credibility at the time the statement was made. Lastly, the ASF was not spontaneous and was not in D.S.'s own words. Under the circumstances, I cannot conclude that the trial judge erred in finding that there were inadequate substitutes to test and assess the truth of the evidence.
17As made clear by the Supreme Court in Youvarajah, at paras. 26-30, the admission of agreed statements of fact for their truth should be consistent with the court’s earlier decisions in K.G.B. and R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787. That is, when a witness recants, the agreed statement of facts may be admissible for its truth as an out-of-court prior inconsistent statement if threshold reliability can be established by “the presence of adequate substitutes for testing truth and accuracy (procedural reliability)”: Youvarajah, at para. 30.
18In our view, the subsequent decision of this court in R. v. Kanagalingam, 2014 ONCA 727, 315 C.C.C. (3d) 199, is distinguishable from the present case.
19First, unlike the situation in Kanagalingam, B.K. did not swear to the truth of the agreed statement of facts at his guilty plea.
20Second, in the case at bar, as in Youvarajah, but unlike the situation in Kanagalingam, cross-examination of the recanting witness was limited by an assertion of solicitor-client privilege.
21Third, B.K.’s agreed statement of facts contains many statements damaging to the appellants that were not matters upon which B.K. could testify to directly as they amounted to inadmissible hearsay. Important details of the alleged kidnapping that were not within B.K.’s personal knowledge were recited. In some instances, the agreed statement of facts indicates that B.K. had learned some of these details from others involved. But even in these instances, it is not indicated who precisely told B.K. this information. For example, it is stated that B.K. “was told” that the purported kidnapping victims had been “threatened with physical violence and was told that Alexander and the others had firearms, though he did not see them.” Unless one of the appellants told B.K. about the guns, this hearsay would not be admissible under the exception for party admissions.
22Fourth, the trial judge admitted not only the agreed statement of facts and the guilty plea but the entire transcript of B.K.’s guilty plea proceeding. The transcript included counsels’ submissions on sentence as well as the sentencing judge’s findings and reasons for sentence. Statements made by counsel on B.K.’s guilty plea proceedings and findings made by the sentencing judge were not admissible as evidence against the appellants. In addition to being inadmissible, some of these statements and findings were highly prejudicial to the appellants.
Disposition
23For these reasons we allow the appeals against conviction, set aside the convictions, and order a new trial. As the appeals from conviction are allowed, Stephens’ application for leave to appeal sentence is dismissed as moot.
Released: “R.J.S.” March 16, 2015
“Robert J. Sharpe J.A.”
“E.E. Gillese J.A.”
“M.L. Benotto J.A.”
