DATE: 20041220
DOCKET: C39138
COURT OF APPEAL FOR ONTARIO
ROSENBERG, MOLDAVER and MACPHERSON JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Susan Mulligan
for the appellant
Respondent
- and -
GUY ALCIDE LAURIN
Andrew Cappell
for the respondent
Appellant
Heard: December 17, 2004
On appeal from the conviction entered on December 3, 2001 by Justice J. Peter Wright of the Ontario Court of Justice.
BY THE COURT:
[1] The appellant, Guy Laurin, appeals from his convictions for point firearm, robbery and use of a firearm while committing an indictable offence. The convictions were entered following a short trial before Wright J. in Ottawa.
[2] On March 6, 2001, the complainant, Mr. Correia, answered a knock at his door and was confronted by a man brandishing a shotgun. There was a struggle between the two men and Correia took the gun away from the man. The man then ran from the scene and was seen to turn right. (The appellant’s house was five doors to the right of the Correia home.) Neither the complainant nor his wife could identify the assailant.
[3] On March 15, 2001, Wayne Eisener called the police and complained that the appellant had attacked him with a hammer. He was brought to police headquarters to speak to Detective Babstock.
[4] As a result of additional information provided by Eisener about the possible involvement of the appellant in an attempted home invasion robbery several days before, the police requested that Eisener provide a KGB statement. Eisener agreed.
[5] Eisener was given a formal KGB warning, he affirmed that he would tell the truth, and his statement was videotaped in its entirety.
[6] In his statement, Eisener related a conversation he had with the appellant about the appellant’s participation in a home invasion the previous week. According to Eisener, the appellant told him that he went to a home with a shotgun and there was money on a table. Inside the home, he was jumped by two guys who wrestled the gun from him. He left the scene.
[7] Eisener was called as a witness at the trial. He agreed that he must have made the March 15/16 statement to the police. However, he testified that he could not recall being interviewed by the police or signing the statement. He could not say if anything in the statement was true.
[8] A voir dire was held to determine the admissibility of Eisener’s statement. The trial judge ruled in favour of its admission and relied heavily on the contents of the statement to convict the appellant.
[9] The appellant appeals his conviction on two grounds: (1) the trial judge erred in admitting Eisener’s statement; and (2) the conviction was unreasonable.
[10] On the first issue, there is no dispute on the necessity component of the analysis. Eisener was either unwilling or unable to provide meaningful testimony at the trial. Hence his previous videotaped statement was potentially important evidence.
[11] With respect to the reliability component of the analysis, two of the three indicia of reliability enunciated in R. v. B. (K.G.), [1992] 1 S.C.R. 740, are clearly present in this case. Eisener affirmed his statement and the police properly cautioned him about the potential penal consequences he could face if he provided false information. Moreover, Eisener’s statement was videotaped in its entirety.
[12] The appellant contends that the value of the videotaping of the statement was undercut because Eisener was adjusting to methadone treatment at the time he made the statement and was seriously depressed and paranoid. The appellant points to the evidence of Dr. McCallum who testified about the disorientation patients can experience while undergoing methadone treatment.
[13] Importantly, the defence did not call Dr. McCallum on the voir dire. She was called as a defence witness later in the trial. So the trial judge did not have the benefit of her testimony in making his KGB ruling. In any event, Dr. McCallum testified that the clinical notes concerning Eisener in the week leading up to March 15 (the day he gave his statement to police) did not record anything to indicate that he was in an unstable state.
[14] The appellant also submits that the trial judge took insufficient account of Eisener’s motive to lie (Eisener and the appellant lived in the same building and had altercations, including on March 15). We disagree. The trial judge considered this factor and concluded that the animosity between Eisener and the appellant did not render Eisener’s statement unreliable. This conclusion was open to him.
[15] The third factor on the reliability branch of the KGB analysis is whether the person making the statement is available to be cross‑examined at trial. The appellant contends that this factor tells strongly in his favour because when Eisener was called as a witness at the trial, he could remember nothing about his statement.
[16] There is some merit in this submission. However, its force is reduced by two factors. First, when Eisener disappeared during his cross‑examination, defence counsel was not troubled and specifically disclaimed any interest in an adjournment and/or bench warrant directed towards securing Eisener’s return. Second, defence counsel’s cross‑examination of Eisener did elicit some testimony that was relevant on the question of the reliability of his statement – there was a major conflict between Eisener and the appellant shortly before Eisener made the statement, he had a lengthy criminal record, he was in “rough shape” because of anti‑depressants and sleeping pills when he made his statement, and he admitted that it was possible that he had heard about the Correia robbery from a source other than the appellant.
[17] In the end, the trial judge concluded that “the Crown has established a sufficient guarantee of trustworthiness to meet the requirements of reliability, and, accordingly, the statement of Mr. Eisener will be admitted into evidence”. On the basis of the preceding analysis, we agree with his ruling.
[18] On the second issue, there is no basis on which to conclude that the trial judge’s ultimate verdict was unreasonable. The trial judge was entitled to rely on Eisener’s statement for the truth of its contents and he adverted to a fairly substantial amount of circumstantial evidence which tended to support the statement.
[19] The appeal is dismissed.
RELEASED: December 20, 2004 (“MR”)
“M. Rosenberg J.A.”
“M. J. Moldaver J.A.”
“J. C. MacPherson J.A.”