Court File and Parties

Court File No.: Newmarket Court File No. 13-06835 Date: 2016-05-06 Ontario Court of Justice

Between: Her Majesty the Queen — And — Blake Allen Leland

Heard: December 11, 2015

Before: Justice A. A. Ghosh

Ruling on K.G.B. Application

Counsel:

• J. Halajian, for the Crown
• S. Pearl, for the defendant Blake Leland

GHOSH J.:

Overview

[1] Mr. Blake Leland stood trial facing six counts of assault and a single count of failing to comply with his recognizance. On January 27, 2016, I found him guilty of four of the seven charges, including the breach of recognizance.

[2] During re-examination of the complainant, Ashley Briscoe, the Crown applied to cross-examine the complainant regarding the making of her videotaped statement to police, pursuant to s. 9(2) of The Canada Evidence Act. The application was granted with the consent of the defence.

[3] The Crown then applied to admit the videotaped police statement of Ms. Briscoe for its truth, considering the principled approach to the admissibility of hearsay evidence as outlined in the Supreme Court decisions of R. v. K.G.B., [1993] S.C.J. No. 22 and R. v. Khelawon, 2006 SCC 57, [2006] S.C.J. No. 57.

[4] On December 11, 2015, I provided an oral ruling admitting the statement of the complainant with written reasons to follow. These are my reasons.

Evidence

[5] Ashley Briscoe, the alleged victim, was called to testify by the Crown. Early into her evidence, it became apparent that she was a reluctant witness for the prosecution. This was illustrated by the Crown having to refresh Ms. Briscoe's memory with her police statement virtually every time the evidence approached any inculpation of Mr. Leland. Each time the complainant was refreshed with her police statement during examination in-chief, she adopted the representations she had made.

[6] During cross-examination, Mr. Leland's counsel put several exculpatory propositions to the complainant that she adopted. This evidence was in stark contrast to her testimony in-chief and demonstrated a recantation of the allegations of assault. As a consequence of the recantation, the Crown applied to cross-examine Ms. Briscoe about the statement she had provided, pursuant to s. 9(2) of The Canada Evidence Act. I granted this application with the consent of Mr. Leland's counsel.

[7] Ms. Briscoe, during re-examination, remained firm in her recantation. The Crown then applied to admit Ms. Briscoe's videotaped statement for the truth of its contents.

Position of the Parties

[8] The Crown submitted that Ms. Briscoe's videotaped statement met the twin admissibility criteria for hearsay. The necessity criterion was submitted to have been satisfied, given the complainant's recantation during cross-examination. The reliability criterion was also submitted to have been satisfied, given the statement was video-recorded after a "K.G.B. caution". Although the statement was not sworn due to the unavailability of a commissioner of oaths, there were sufficient indicators of reliability to be found in corroborative evidence and in the circumstances under which the statement was taken.

[9] Counsel for Mr. Leland conceded that the necessity criterion was satisfied. Ms. Briscoe's recantation during cross-examination assured that necessity was met. The defence resisted admissibility due to the submitted unreliability of the statement in the threshold analysis. Counsel agreed that the absence of a formal oath was not necessarily determinative. However, when this omission was combined with an allegedly deficient K.G.B. caution, the statement failed to contain sufficient hallmarks of reliability to warrant its substantive admission.

Analysis

Hearsay – An Overview

[10] Hearsay evidence is presumptively inadmissible, and is identified where a statement is being adduced for its truth but the ability to contemporaneously test it by way of cross-examination is absent. There are several traditional "category" exceptions to this rule, none of which apply here. Over two decades ago, the Supreme Court had outlined a residual, overarching category permitting the admission of hearsay evidence on a principled, functional basis: If the evidence satisfied the criteria of "necessity" and "reliability" on the balance of probabilities, hearsay may be admitted for its truth if its probative value outweighed its prejudicial effect.

[11] The central concern underlying the exclusionary rule is focused on the difficulty of testing the reliability of the declarant's assertion. This concern is most obvious in the case where the declarant cannot be produced to testify. However, it remains where the witness is present to testify, but has recanted from a previous out of court statement. It is the absence of an opportunity to cross-examine the declarant at the time the utterance was made that lies at the heart of the exclusionary rule. Trial fairness is central to the court's cautious approach to hearsay evidence. However, the truth-seeking function of the trial also features prominently in the admissibility analysis.

"Necessity"

[12] As indicated, the "necessity" criterion had been admitted by Mr. Leland's counsel as having been satisfied. It was correct to do so. Necessity is not to be associated strictly with the physical unavailability of the witness. It is the unavailability of the evidence of the witness that is the focus of the necessity criterion. Where a witness recants in court from a prior inconsistent statement, necessity is rarely, if ever, in issue. The prior statement becomes necessary as evidence of the same quality cannot be obtained at trial: see R. v. K.G.B.; R. v. Khelawon; R. v. FJU, (1995), 101 C.C.C. (3d) 97 (S.C.C.) at paras. 35, 46.

[13] In this case, Ms. Briscoe needed to have her memory refreshed repeatedly with her videotaped police statement during examination in-chief. She essentially adopted the representations made in the statement until she was cross-examined. During cross-examination, Ms. Briscoe repudiated all of the representations she had made to the police where Mr. Leland was inculpated in the offences. She also enhanced her own responsibility in each alleged conflict, dramatically departing from her police statement. The police statement thus became reasonably necessary, given the recantation and potential loss of valuable evidence.

"Reliability"

[14] The contested issue in the present application lied in the reliability of the videotaped statement. The dispute here was focused on the fact that the statement of the complainant was not sworn and that the warning regarding potential consequences for lying to the police was unsatisfactory.

[15] In the context of a K.G.B. application where a prior inconsistent statement is being adduced for its truth, the most important contextual factor is the availability of the declarant to be cross-examined at trial. While the inability to contemporaneously cross-examine the declarant is of central importance, this concern is present in every K.G.B. application.

[16] The availability of the declarant to be cross-examined at trial, coupled with the transparent quality of a videotaped statement may well satisfy the reliability requirement. In this case, not only was Ms. Briscoe cross-examined into a virtually complete recantation, but she was extensively examined by both lawyers regarding the generation of her prior statement: see R. v. Trieu, [2005] O.J. No. 1083 (ONCA).

[17] Counsel for Mr. Leland submitted that the absence of a formal oath and the officer's alleged failure to satisfactorily explain the consequences for being untruthful undermined the threshold reliability of the statement. In support of this submission, I was referred to the decision of R. v. Diu, [2000] O.J. No. 1770 (Ont.C.A.).

The K.G.B. Caution

[18] In R. v. K.G.B., supra, at para. 94, Lamer C.J.C. commented that 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." At the time, the Supreme Court readily recognized that there could be substitutes for the oath and for what came to be known as the "K.G.B. caution."

[19] There are several distinguishing features between the reliability analysis in the Diu appeal and the matter before me. The recanting witness in Diu was in police custody when the prior statement was taken and he provided unchallenged evidence on the K.G.B. voir dire that he did not understand that he could be charged with a criminal offence if he lied. The investigators had merely recited the potential offences of "fabricating evidence", "obstructing justice" and "public mischief". In doing so, they had failed to satisfactorily explain the requisite elements of the offences or the potentially serious consequences of lying to the police.

[20] The Court of Appeal in Diu also expressed the additional concern that the witness was not warned that the statement could be used in court if he recanted. Finally, it was noted that the trial judge had improperly invoked the ethnicity of the witness in discounting the significance that any oath would have had on him. These considerations combined to detract from the threshold reliability of the statement.

[21] In the present matter, Officer Mashinter engaged in the following exchange with Ms. Briscoe:

Officer: "If at any time you change your statement or claim not to remember the events, the content of the video statement that you now give may be used in evidence at court. Do you understand that?"

Ms. Briscoe: "Yeah."

Officer: "It's a crime in Canada to lie to the police and to mislead them in an investigation. It's also a crime in Canada to falsely accuse another person of committing a crime. Do you understand that?"

Ms. Briscoe: "Yeah."

Officer: "Do you understand that if you lie to the police you could be charged with a crime yourself?"

Ms. Briscoe: "Yeah."

Officer: "Do you understand that it's your choice whether or not you make a statement today?"

Ms. Briscoe: "Yeah."

[22] Unlike the K.G.B. caution in Diu, Officer Mashinter employed clear, colloquial language in explaining the potential charges and related consequences arising from an untruthful police statement. Ms. Briscoe testified on the voir dire and confirmed that she understood at the time of her statement that she could be charged for lying to the police, misleading the police in an investigation, or falsely implicating another in a crime.

[23] I found this sufficiently satisfied the rigours of the traditional "K.G.B. caution." With the evolution of the functional approach to hearsay, I do not accept that the contemporary analysis requires an officer to advise a complainant of domestic violence that she might also be incarcerated for lying to the police.

[24] If I am incorrect in concluding that the K.G.B. caution was adequate, there were satisfactory substitutes to support threshold reliability. I will elaborate.

The Absence of "the Oath"

[25] Mr. Leland's counsel understandably submitted that the absence of a traditional oath or affirmation somewhat undermined the reliability of prior statement, particularly in light of the allegedly deficient caution. The context within which this omission arose is important in considering threshold reliability.

[26] At the commencement of the statement, Ms. Briscoe indicated that she was willing to provide a videotaped statement under oath supporting allegations of domestic assault. After discussing the potential consequences of lying to the police, Officer Mashinter and Ms. Briscoe had the following exchange regarding the oath or solemn affirmation:

Officer: "Okay. So, are you prepared to give a videotaped statement under oath or solemn affirmation or declaration at this time?"

Ms. Briscoe: "Yes."

Officer: "Okay. So, normally at this point we have a commissioner of oaths come in and they'll swear the affirmation or declaration, but because of the time –"

Ms. Briscoe: "Yeah."

Officer: "– in the afternoon, we don't have a commissioner working at this time, so –"

Ms. Briscoe: "It's okay."

Officer: "Are you okay to come back and swear to that if we need it to be sworn to at another time?"

Ms. Briscoe: "Yeah."

Officer: "Okay. I just need to make sure that you understand how serious it is –"

Ms. Briscoe: "Yeah."

Officer: "– about making a proper statement."

Ms. Briscoe: "Yeah."

[27] The oath, while still a valuable indicator of threshold reliability, has featured less prominently in recent years as the functional, contextual approach to hearsay has continued to crystallize. Where the prior statement is videotaped and the declarant is available for cross-examination, threshold reliability is all but satisfied. In R. v. Trieu, Justice Moldaver observed:

Accepting 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…

In 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.

[28] In the present case, the only circumstance preventing the statement from being taken under oath was the unavailability of a commissioner of oaths. The officer impressed on Ms. Briscoe the importance of telling the truth, and by inference, the role of the oath in establishing the solemnity of that requirement. Ms. Briscoe indicated her appreciation of the need to tell the truth and expressed her willingness to return and have the statement sworn. Attributing heightened significance to the absence of the oath in such circumstances is, in my view, to improperly prefer form over substance.

Circumstances Surrounding the Taking of the Statement

[29] The circumstances under which this statement arose must also be considered. Ms. Briscoe had voluntarily attended the police station on the urging of a friend to report abuse at the hands of Mr. Leland. She was somewhat preoccupied with having her belongings returned from Mr. Leland, as Mr. Leland's mother had not permitted her access to Leland family home that day. Ms. Briscoe's representations to the police would reveal a particularly serious allegation of domestic abuse from the night before. An officer photographed her alleged injuries.

[30] Ms. Briscoe provided a brief initial statement to Officer Hunter that he recorded in his notebook. The substance of this initial report largely aligned with the videotaped statement that would be taken later that day. Officer Hunter detected some hesitance from Ms. Briscoe and noted that initially she did not want to officially report any criminality. She had merely attended the police station seeking "advice" regarding her allegations of abuse, but became more comfortable as the interview continued. Officer Hunter then arranged for a senior officer to take a formal statement from Ms. Briscoe.

[31] Officer Mashinter would conduct the videotaped interview. He asked Ms. Briscoe if she had used drugs or alcohol that day before arriving at the police station. She replied in the negative, and this was notably supported by her sober and coherent presentation throughout the interview. Ms. Briscoe's testimony on the voir dire that she was drunk throughout the videotaped statement was in stark contrast to how she answered and appeared on video. In support of threshold reliability, I found that she was sober, alert and appropriately responsive during the statement.

[32] Officer Mashinter's approach to the interview was relaxed and receptive. He mostly employed open-ended questions and generally avoided leading questions, particularly surrounding key areas of the allegations. Ms. Briscoe's responses appeared thoughtful and unprompted and she seemed largely at ease and matter-of-fact in detailing the alleged abuse.

[33] I found these circumstances to collectively support the threshold reliability of Ms. Briscoe's statement.

Corroboration

[34] The Supreme Court in Khelawon clarified that corroborative evidence may be considered in determining the threshold reliability of the out-of-court statement.

[35] When Ms. Briscoe provided her videotaped statement, she recounted an incident from the night before where she alleged Mr. Leland choked her and dragged her around his home. Officer Mashinter on video summarized the injuries he observed that appeared consistent with her allegations. Another officer would photograph these injuries.

[36] Ms. Briscoe recounted a separate incident from some weeks before where Mr. Leland allegedly kicked her in the head while wearing his steel-toed work boots. Hospital records from the relevant time revealed that Ms. Briscoe had observable trauma to her face and skull. She was assessed for a potential concussion and x-rays of her skull were taken. While the examination did not reveal a concussion or any damage to her skull, Ms. Briscoe experienced sufficient pain to warrant a prescription for pain medication.

[37] I was satisfied that the corroborative evidence referenced was of some support in determining the threshold reliability of Ms. Briscoe's police statement.

Conclusion

[38] I found that the twin criteria of "necessity" and "reliability" had been satisfied to permit the admission of the prior inconsistent statement of Ashley Briscoe for its truth. Her recantation during cross-examination made the evidence "necessary". The statement was reliable on a threshold basis, given that it was a cautioned, videotaped statement and that Ms. Briscoe was available for cross-examination.

[39] The fact-finding process would have been distorted without its admission, particularly in light of the complainant's initial adoption of the statement during examination in chief and the extrinsic evidence in support of the original account. The videotaped statement of Ashley Briscoe was accordingly received in evidence for its truth.

Signed: "Justice A.A. Ghosh"

Released: May 6, 2016