DATE: 20040413

DOCKET: C36354

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) v. PAUL CHAN (Appellant)

BEFORE:

MACPHERSON and SIMMONS JJ.A. and JURIANSZ J. ad hoc

COUNSEL:

Michael A. Moon

for the appellant

Jamie Klukach

for the respondent

HEARD:

April 7, 2004

On appeal from the conviction entered by Justice Peter Grossi of the Superior Court of Justice on April 25, 2001 and from the sentence imposed on May 24, 2001.

E N D O R S E M E N T

[1] The appellant appeals against his conviction for robbery and requests leave to appeal the sentence imposed of 22 months imprisonment. He submits that the trial judge erred in ruling that a co-accused’s videotaped K.G.B. statement implicating him in the robbery was admissible for the truth of its content at his trial. In addition, he submits that the trial judge erred in failing to impose a conditional sentence.

[2] On July 9, 1999, the appellant, Mr. Chung and one other person were arrested in connection with the robbery of a fast food outlet. At the time of his arrest, Mr. Chung made a statement to the police implicating himself, the third person, and the appellant in the robbery. Prior to the appellant's trial, Mr. Chung pled guilty to armed robbery and forcible confinement. He was sentenced to two years less a day imprisonment plus probation.

[3] When called as a witness at the appellant's trial, Mr. Chung claimed a lack of memory about the appellant's involvement in the robbery and refused to refresh his memory from his statement to the police. In determining that Mr. Chung's K.G.B. statement met the test of threshold reliability, the trial judge applied the standard of proof on a balance of probabilities. As part of the determination, he concluded that Mr. Chung's statement was voluntary and that Mr. Chung's right to counsel had not been infringed.

[4] The appellant submits that the trial judge erred in applying the standard of proof on a balance of probabilities to the issue of voluntariness. He relies on Lamer J.'s statement in R. v. K.G.B. (1993), 79 C.C.C. (3d) 257 (S.C.C.) at 299 that, in determining threshold reliability,

The trial judge must satisfy him or herself (again, in the majority of cases on the balance of probabilities) on the voir dire that the statement was not the product of coercion... [emphasis added]

[5] The appellant contends that Lamer J.'s comments open the door to a category of rare exceptions in relation to the prior statements of non-accused witnesses to the general requirement of proof of threshold reliability on a balance of probabilities. Moreover, he submits that policy reasons dictate that where the Crown seeks to admit a co-accused's K.G.B. statement implicating an accused for the truth of its content, the Crown must prove voluntariness on the standard of proof beyond a reasonable doubt.

[6] We do not accept the appellant's submissions. In K.G.B., Lamer J. refers specifically to a category of cases involving the prior statements of non-accused witnesses that repeat an admission made by the accused: see pp. 286 and 297. In relation to that category of statements, he stipulates, that where the non-accused witness “reports an admission of the accused made to a person in authority, the higher burden associated with the law relating to confessions may well apply.” In our view, Lamer J.’s comments in K.G.B. concerning the necessity of proof beyond a reasonable doubt do not extend beyond that specific sub-category i.e., cases involving prior statements of non-accused witnesses that report an admission made by the accused to a person in authority.

[7] The appellant was unable to refer us to any cases in which the interpretation he advances of Lamer J.’s comments has been adopted. We conclude the trial judge did not err in applying a standard of proof on a balance of probabilities.

[8] As a further ground of appeal, the appellant submits that the trial judge erred in two respects in finding that Mr. Chung's K.G.B statement was voluntary: (1) in failing to conclude that Mr. Chung's right to counsel was infringed and that the infringement adversely affected the voluntariness of his statement (in this regard, the appellant relies on the fact that Mr. Chung asserted his right to counsel when he arrived at the police station but did not telephone his lawyer before making the K.G.B statement); and (2) in concluding that Mr. Chung's K.G.B statement was voluntary in the face of the failure of the police to videotape two prior statements made by Mr. Chung in the two-to-three hour period immediately preceding the K.G.B statement.

[9] We disagree. The impugned findings involve questions of mixed fact and law. The trial judge made a specific finding that Mr. Chung was given an opportunity on at least three occasions to call a lawyer. He did not do so. The trial judge's finding was available on the evidence and we see no basis to interfere with it.

[10] As for the failure of the police to videotape Mr. Chung's prior statements, the trial judge made a specific finding that Mr. Chung was not a credible witness and rejected his evidence that the police assaulted him and attempted to script his evidence during the course of the earlier statements. In reaching his conclusion that the K.G.B statement was voluntary, the trial judge had the opportunity to see Mr. Chung in the witness box, and to read a transcript and observe a videotape of the K.G.B statement. The trial judge noted that there were long passages in the K.G.B statement detailing Mr. Chung's involvement in the robbery and that Mr. Chung gave no indication of being disoriented. Mr. Chung spoke clearly, his answers indicated that he was focused and he had a good recall of the sequence of events on July 9, 1999.

[11] In our view, the trial judge's findings indicate that, in the particular circumstances of this case, he was satisfied, on a balance of probabilities, that there was a sufficient record of Mr. Chung’s interactions with the police to permit him to properly assess the question of voluntariness. We are not persuaded that there is any basis for interfering with his conclusion that Mr. Chung’s K.G.B. statement was voluntary. Accordingly, we would dismiss the conviction appeal.

[12] On the sentence appeal, the appellant contends that the trial judge erred in principle because he based his conclusion that the appellant is a danger to the community on the fact that a conditional sentence would undermine community confidence in the justice system.

[13] We disagree. Read fairly and as a whole, the trial judge's reasons reflect a finding that the appellant had not accepted responsibility for his involvement in what was a very serious offence and that, in such circumstances, a conditional sentence would not adequately address the sentencing principles of denunciation and deterrence.

[14] For the reasons given, the conviction appeal is dismissed. Leave to appeal sentence is granted but the sentence appeal is dismissed.

“J.C. MacPherson J.A.”

“Janet Simmons J.A.”

“Juriansz J. (ad hoc)”