DATE: 20030825
DOCKET: C38973
COURT OF APPEAL FOR ONTARIO
DOHERTY, MACPHERSON and SHARPE JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Respondent
- and -
MICHAEL SERNOSKI
Appellant
Counsel:
Laura Hodgson, for the respondent
Michael Sernoski, in person, with the assistance of John Norris, duty counsel, for the appellant
Heard: June 24, 2003
On appeal from the conviction by Justice Bernard T. Ryan of the Ontario Court of Justice on August 6, 2002.
BY THE COURT:
[1] The appellant, Michael Sernoski, was convicted of two counts of attempting to obstruct justice. The first count related to an attempt to confine the complainant, Tara Moore, so that she could not testify as a witness at a trial of the appellant’s friend, Richard Roy. The second count related to a letter composed by the appellant and signed by the complainant in which she recanted the substance of her complaints to the police about Mr. Roy.
[2] Ms. Moore and Mr. Roy were apparently girlfriend and boyfriend. A police officer happened to encounter Ms. Moore and noted that her face was bloodied and her nose appeared to be broken. Ms. Moore eventually told the police that Mr. Roy had beaten her. An investigation confirmed that an assault had occurred where Ms. Moore said she had been assaulted. Charges were laid against Mr. Roy. Ms. Moore was a most reluctant witness from the outset. The police had difficulty keeping track of Ms. Moore who is a cocaine addict.
[3] Ms. Moore made a statement to the police under oath and on videotape in which she indicated that the appellant had taken her to an apartment the night before she was scheduled to testify and kept her under the influence of cocaine until after the court proceedings. At trial, Ms. Moore recanted significant parts of the statement that incriminated the appellant in the alleged confinement. The Crown made a K.G.B. application (R. v. B. (K.G.), [1993] 1 S.C.R. 740) seeking to have the videotaped statement admitted for its truth. After hearing extensive evidence, the trial judge admitted the statement.
[4] The complainant continued to testify in the trial proper. Although much of her testimony was confusing, it is fair to say that a good deal of it was inconsistent with what she said about the appellant in her statement.
[5] In his decision, the trial judge rejected the complainant’s trial testimony: “She had no thought of the fact that she was called upon to tell the truth today. She would have said anything, whatever anybody wanted her to say.”
[6] The trial judge then turned to the evidence of the video statement, as well as the testimony of another witness, David Lessard. He found that the appellant had directed Mr. Lessard to prepare the letter “for the purpose of getting Ms. Moore to sign and in her state, she would have signed anything and she did sign.” He also concluded that the appellant “was certainly instrumental in ensuring that the complainant was not available for trial the next day”. Accordingly, the trial judge convicted the appellant on both counts.[^1]
[7] The principal issues on the appeal relate to the complainant’s K.G.B. statement. In a very able argument, Mr. Norris, serving as duty counsel for inmate appeals in Kingston, contends that there were two serious problems with this statement: (1) the trial judge’s reasons in his ruling admitting the statement are so deficient that they fail the ‘sufficiency of reasons’ standard enunciated by Binnie J. in R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869; and (2) the statement did not meet the K.G.B. test for admissibility on the merits.
(1) The Sheppard issue
[8] There is no doubt that the sufficiency of reasons standard from Sheppard applies to rulings made by a judge during a trial, as well as to his reasons for judgment. Indeed, in R. v. Chappell (2003), 172 C.C.C. (3d) 539 at 546, this court held that the Sheppard standard applies to a trial judge’s ruling on a K.G.B. application.
[9] The appellant contends that the trial judge failed to address four features that cast doubt on the complainant’s statement: (1) her physical and emotional state when she made the statement; (2) her potential motive to lie; (3) her admission during her trial testimony that she lied in her statement; and (4) the absence of a police caution to the complainant about the possible jeopardy she was in when she was brought to the police station.
[10] We do not accept these submissions. Although the trial judge’s K.G.B. ruling is brief (two pages), it is clear that he was alive to these types of considerations. He discussed the formalities surrounding the taking of the statement, including taking an oath from the complainant and videotaping her statement, and he specifically addressed the complainant’s condition at the time she made the statement.
(2) The merits of the K.G.B. ruling
[11] The appellant concedes that the necessity component of the K.G.B. test was met, since the complainant’s trial testimony was inconsistent with her earlier statement to the police. However, relying on this court’s recent decision in Chappell, he submits that the reliability component was not established.
[12] We disagree. In B. (K.G.), Lamer C.J.C. identified three factors which might enhance the reliability of a previous statement which a witness recants at trial: (1) the statement was made under oath; (2) the statement was videotaped; and (3) the maker of the statement is available to be cross‑examined at the trial. All of these factors were present with respect to the complainant’s statement. In Chappell, only the third factor was present.
[13] The remaining question is whether the contents of the complainant’s statement could support the trial judge’s finding of guilt on the two charges.
[14] With respect to the obstruct/confinement charge, the trial judge explicitly relied on the contents of the complainant’s videotaped statement. In our view, that reliance was appropriate. In her statement, the complainant said that the appellant picked her up the day before Roy’s trial, took her to an apartment in Hull and told her that she could not leave until he heard from Mr. Roy after court the next day. She also said that she was afraid of the appellant and his friends:
Q. And while you were at that rooming house in Hull, your comment was that you didn’t feel you could leave?
A. No.
Q. Right?
A. No.
Q. And you agree with that?
A. Yes.
Q. And you said you didn’t feel you could leave because you were – you were scared of what would happen to you, right?
A. Yes.
Q. And Officer Reynolds asked you why would you do something, why would you listen to somebody who told you to do that and you said because of what they’re capable of, right?
A. Yes.
Q. “They” being Mr. Roy and his friends, right?
A. Yes.
Q. And one of his friends is Mr. Sernoski?
A. Yes.
THE COURT: I’m sorry. I didn’t hear that.
WITNESS: Yes.
Q. And you explained to Officer Reynolds why it is you feared them, right?
A. Yes.
Q. And you agreed that you were being truthful when you told Officer Reynolds why it is you feared Mr. Roy and his friends?
A. Yes.
Q. And specifically you were talking about – about Mr. Sernoski, about Boo, right?
A. Yes.
[15] With respect to the “obstruct/letter” charge, it does not appear from his reasons that the trial judge relied on anything the complainant said in her K.G.B. statement. Indeed, it is difficult to determine from the record whether she said anything about the letter in that statement. The trial judge relied on the testimony of another witness, David Lessard, who typed the letter at the appellant’s request, and on inferences from that testimony and other circumstances, including the friendship between the appellant and Mr. Roy. The trial judge concluded his brief consideration of this charge with these words:
… The defendant [accused] obviously was obtaining the letter for the purposes of getting Ms. Moore to sign and in her state, she would have signed anything and she did sign.
[16] The trial judge did not refer to the actual language of the charge. The Crown alleged an attempt to obstruct justice “by forcing Tara Moore to sign a statement recanting her evidence”.
[17] Based on the language used in the charge, it would appear that the essence of the attempt to obstruct justice lies in the use of force to obtain recantation. The only evidence as to how the recantation came about came from Ms. Moore. She did not suggest that she was forced to sign the recantation. Quite to the contrary, she testified that the statement was her idea. While the trial judge rejected this evidence along with the rest of Ms. Moore’s testimony, that rejection cannot provide a basis upon which to find that she was in fact forced to sign the statement. In our view, there is no evidence from which it could reasonably be inferred that Ms. Moore was forced to sign the statement.
[18] It may be suggested that our reading of the information is unduly narrow and that the essence of the attempt to obstruct justice is the procuring of a false recantation. We do not think that the words of the charge bear this reading. However, even if they did, it would be incumbent on the Crown to prove that the appellant knew that the recantation was false: R. v. Savinkoff (1962), 39 C.R. 306 (B.C.C.A.). While there was evidence from which the trial judge could conclude that the recantation was false, there was no credible evidence upon which it could be reasonably inferred that the appellant knew the statement was false.
[19] We would dismiss the appeal on the obstruct/confinement charge (count 1) and would allow the appeal on the obstruct/letter charge (count 2), quash the conviction and enter an acquittal.
RELEASED: August 25, 2003 (“DD”)
“Doherty J.A.”
“J. C. MacPherson J.A.”
“Robert Sharpe J.A.”
[^1]: The trial judge acquitted the appellant on a third count, forcible confinement. Although there was a similarity in the facts giving rise to counts 1 and 3 (which the trial judge acknowledged), the appellant does not advance as a ground of appeal that the verdicts on these two counts were inconsistent.