SUPREME COURT OF CANADA
Between:
Robert Allen Devine
Appellant
and
Her Majesty The Queen
Respondent
Coram: Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
Reasons for Judgment:
(paras. 1 to 32)
Charron J. (Binnie, LeBel, Deschamps, Fish, Abella and Rothstein JJ. concurring)
R. v. Devine, [2008] 2 S.C.R. 283, 2008 SCC 36
Robert Allen Devine Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Devine
Neutral citation: 2008 SCC 36.
2008: February 26; 2008: June 19.
Present: Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
on appeal from the court of appeal for alberta
Criminal law — Evidence — Admissibility — Hearsay — Principled exception to hearsay rule — Witness at trial recanting earlier out‑of‑court statement identifying accused — Trial judge admitting out‑of‑court statement under principled exception to hearsay rule — Whether statement should have been admitted.
The accused was alleged to have assaulted the complainant in two separate incidents. Both the complainant and his companion, P, who witnessed the first incident, refused to give a statement to the police after the first assault. Following the second assault, however, they each gave a statement identifying the accused as the assailant. Before P’s statement was videotaped and recorded, a police officer explained the seriousness of making the statement, the possible consequences of giving a false statement, and administered a form of oath. At trial, both the complainant and P recanted their identification of the accused. P also testified that the identification in her statement was based on information obtained from others. The Crown sought leave to introduce P’s police statement for the truth of its contents under the principled exception to the hearsay rule. The trial judge found that P’s identification contained in the statement was not itself hearsay as contended by the defence. He concluded that the identification was based on P’s own observations, and that, in testifying to the contrary, she was trying to avoid identifying the accused at trial. He admitted the out‑of‑court statement under the principled approach to hearsay and convicted the accused of assault causing bodily harm and robbery with respect to the first incident. A majority of the Court of Appeal upheld the decision to admit the statement and rejected the contention that the verdict was unreasonable. The dissenting judge would have ruled the statement inadmissible on the basis that P’s identification was itself hearsay. He also found the verdict to be unreasonable.
Held: The appeal should be dismissed. The statement was admissible and the verdict was not unreasonable.
There is no reason to interfere with the trial judge’s finding that P’s identification of the accused in her out‑of‑court statement was based on her own observations. Since P’s identification of the accused is not itself hearsay, the statement may be admitted under the principled approach if the twin criteria of necessity and reliability are met. Here, it is conceded that the necessity criterion is made out. Where a witness recants an earlier statement, necessity is based on the unavailability of the testimony, not the witness. The reliability criterion is also satisfied because there is a sufficient basis for assessing the truth and accuracy of P’s statement. In taking P’s statement, the police followed the guidelines set out in R. v. B. (K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740, which brought the statement to a comparable standard of reliability as her in‑court testimony. Furthermore, although P recanted her identification of the accused at trial, there was a meaningful opportunity to test her evidence through cross‑examination. P testified under oath that at the time she gave her statement, she was aware of the seriousness of the statement and told the truth to the best of her ability. The trial judge was able to assess her demeanour, and gave a detailed account of her evasiveness and reluctance to identify the accused in the courtroom. There is no reason to disturb his finding that she was trying to distance herself on the witness stand from any identification of the accused. [14-16] [20] [28]
Finally, the verdict rendered was not unreasonable as P’s identification evidence was capable of supporting the trial judge’s finding that the accused was the assailant. [31]
Cases Cited
Applied: R. v. B. (K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740; R. v. Khelawon, [2006] 2 S.C.R. 787, 2006 SCC 57; referred to: R. v. Couture, [2007] 2 S.C.R. 517, 2007 SCC 28; R. v. Hawkins, 1996 154 (SCC), [1996] 3 S.C.R. 1043; R. v. U. (F.J.), 1995 74 (SCC), [1995] 3 S.C.R. 764; R. v. Post (2007), 217 C.C.C. (3d) 225, 2007 BCCA 123; R. v. N. (T.G.) (2007), 216 C.C.C. (3d) 329, 2007 BCCA 2; R. v. Biniaris, [2000] 1 S.C.R. 381, 2000 SCC 15; R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168.
APPEAL from a judgment of the Alberta Court of Appeal (Conrad, McFadyen and Berger JJ.A.) (2007), 404 A.R. 81, 394 W.A.C. 81, 218 C.C.C. (3d) 497, 46 C.R. (6th) 371, [2007] A.J. No. 277 (QL), 2007 CarswellAlta 323, 2007 ABCA 49, affirming the accused’s conviction of robbery and assault causing bodily harm entered by Norheim Prov. Ct. J., [2005] A.J. No. 1031 (QL), 2005 CarswellAlta 1146, 2005 ABPC 162. Appeal dismissed.
Steven J. Fix and Nicole R. Sissons, for the appellant.
James A. Bowron, for the respondent.
The judgment of the Court was delivered by
1Charron J. — The appellant, Robert Allen Devine, was convicted at trial of robbery and assault causing bodily harm in respect of an incident which occurred on November 19, 2004. He was acquitted of a second assault on the same complainant, alleged to have occurred on February 2, 2005. On appeal, his convictions were affirmed by Conrad and McFadyen JJ.A. of the Alberta Court of Appeal. Berger J.A., writing in dissent, would have quashed the convictions and substituted a verdict of not guilty on both counts. Mr. Devine appeals to this Court as of right. For the reasons that follow, I would dismiss the appeal.
1. The Proceedings Below
2At trial, no issue was taken that the complainant, Robert Schroeder, was robbed and severely beaten in November of 2004. He was again assaulted in February of 2005. The sole issue was the identification of the accused as the assailant. Both the complainant and his companion Cindy Pawliw, who witnessed the first incident, refused to give a statement to the police immediately following the November assault. Following the second assault, however, they each gave a statement to the police identifying Mr. Devine as the assailant. At trial, both witnesses testified but recanted their identification of Mr. Devine. Among other things, Ms. Pawliw testified that she had used Mr. Devine’s name in her statement because “someone, she could not remember who, had suggested it was he” ([2005] A.J. No. 1031 (QL), 2005 ABPC 162, at para. 7).
3The Crown sought leave to introduce Ms. Pawliw’s police statement for the truth of its contents under the principled exception to the hearsay rule, citing this Court’s decision in R. v. B. (K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740 (“K.G.B.”). The officer who took Ms. Pawliw’s statement followed the guidelines set out in that case. Mr. Schroeder also gave a warned statement but it was not videotaped. The Crown did not seek to introduce Mr. Schroeder’s statement and the trial judge did not consider it in arriving at his verdict.
4The trial judge rejected the argument that Ms. Pawliw’s identification of the accused in the statement was itself hearsay and therefore inadmissible under the principled approach. He concluded that it was “extremely unlikely” that the identification was based on what others had told her:
When she was asked on the stand about her identification of the accused in her statement she responded that “I was not asked if I knew who it was myself, personally, and no one asked me either. I just assimilated or whatever, assumed that it was him because somebody had told me that it was him.” I note that without coaching as to the description of the parties who entered the hotel room, she gave a very detailed description of the assailant, right down to the clothes that he was wearing. This description matches the physical appearance of the accused. Within the context of this small town and the manner in which the statement was taken, I conclude that it is extremely unlikely that she would have given the description that she did, in the manner that she did in her statement, without qualifying the identification, if she could not identify the assailant. I conclude that she has given this explanation on the stand as a device to avoid identification of the accused from the witness stand. [para. 33]
5The trial judge determined that Ms. Pawliw’s statement was admissible under the principled approach to hearsay. The necessity requirement was met because Ms. Pawliw was unable or unwilling to identify the assailant at trial. With respect to threshold reliability, the trial judge noted that the statement was videotaped and recorded. Before Ms. Pawliw gave her statement, a police officer explained the seriousness of making the statement, the possible consequences of giving a false statement, and administered a form of oath. These factors, among others, satisfied the trial judge that the statement was sufficiently reliable to be admitted.
6The trial judge convicted Mr. Devine of assault causing bodily harm and robbery with respect to the November incident. The trial judge relied mainly on the strength of Ms. Pawliw’s identification evidence. He also found that Mr. Schroeder’s testimony supported the description in Ms. Pawliw’s statement of the manner in which the robbery and assault took place. However, the trial judge could not be satisfied beyond a reasonable doubt that the assailant in February was the accused. Ms. Pawliw had not witnessed the February incident and her K.G.B. statement provided no first-hand evidence of those allegations. Accordingly, the trial judge acquitted Mr. Devine of the charge in relation to the February incident.
7Mr. Devine appealed on two grounds. First, he argued that the trial judge erred in admitting Ms. Pawliw’s K.G.B. statement in evidence. He conceded that the necessity requirement was met by reason of Ms. Pawliw’s recantation. However, he submitted that the statement was not reliable and thus inadmissible for the truth of its contents. In particular, he argued that the significant time lapse between the first assault and the statement and the witness’s admitted drug use diminished the threshold reliability of her statement. Mr. Devine further argued that the trial judge erred in law by failing to weigh the probative value of the K.G.B. statement against its prejudicial effect if admitted.
8A majority of the Court of Appeal rejected this ground of appeal, and held that the trial judge was correct to admit the statement. The majority concluded as follows:
The trial judge correctly stated the law with respect to the admissibility of KGB statements. In a careful, well reasoned judgment, he considered all the relevant factors and concluded that the statement was admissible. He did not misapprehend the evidence and applied the principles established in R. v. K.G.B., 1993 116 (SCC), [1993] 1 S.C.R. 740 . . . . While he did not specifically refer to the balancing of probative value against the prejudicial effect of admission, it is not clear that the matter was a live issue at trial and, in any event, the KGB statement was key evidence identifying the accused. Nothing in the statement suggested any undue prejudice.
((2007), 404 A.R. 81, 2007 ABCA 49, at para. 13)
9Berger J.A., in dissent, was of the view that the principles enunciated in K.G.B. did not apply in this case because Ms. Pawliw’s purported identification of the accused in her police statement was “information obtained from others — others who were not before the court and whose trustworthiness was incapable of assessment” (para. 31).
10As a second and alternative ground of appeal, Mr. Devine argued that the verdict was unreasonable. He submitted that the trial judge failed to properly consider the ultimate reliability of the K.G.B. statement once it was admitted, citing the witness’s admitted drug use, her character, the delay, lack of corroboration, and inconsistencies between the complainants’ testimony at trial and her K.G.B. statement as factors which tended to diminish the statement’s ultimate reliability.
11The majority rejected this ground of appeal as well. While there were reasons to be concerned about the identification evidence, the trial judge considered the relevant factors, properly assessed the evidence and, as the finder of fact, concluded that the evidence satisfied him beyond a reasonable doubt of the guilt of the accused. As such, there was no basis upon which to interfere with the verdict.
12Berger J.A. disagreed, concluding as follows (at para. 35):
The KGB statement should have been excluded. If properly admitted, it should not have been relied upon. The trial judge made clear that the witness’s KGB statement was essential if a conviction were to be recorded. Without the benefit of that statement, the verdict rendered is one that a properly instructed jury, acting judicially, could not have reasonably pronounced. The verdict is unreasonable and not supported by the evidence. No jury acting reasonably could fail to have a doubt: R. v. Corbett, 1973 199 (SCC), [1975] 2 S.C.R. 275 . . . at 282; R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168 . . . at 185; and R. v. Davis (1995), 1995 ABCA 188, 165 A.R. 243 . . . (C.A.), at paras. 9-13.
2. Analysis
2.1 Admissibility of the K.G.B. Statement
13The first question which divided the Court of Appeal below is whether Ms. Pawliw’s identification of the accused was itself hearsay. As this Court confirmed in K.G.B., a prior inconsistent statement can only be admitted for the truth of its contents under the principled approach if the evidence contained in the statement would be admissible through the witness’s testimony at trial (K.G.B., at p. 784). Therefore, Ms. Pawliw’s identification evidence can only be admitted under the principled approach if the identification was not itself based on hearsay. This principle was reiterated more recently in R. v. Couture, [2007] 2 S.C.R. 517, 2007 SCC 28, at para. 75:
It is also clear that the principled exception applies only to hearsay evidence that would otherwise be admissible through the direct testimony of the declarant, had the declarant been available and competent to testify at trial: B. (K.G.), at p. 784; Hawkins, at para. 69. There is no issue that if Darlene had been available and competent to testify at trial, she would have been able to offer the evidence through direct testimony. Although any direct testimony about David Couture’s statements made to her would itself constitute hearsay, admissions from an accused fall within a well-recognized exception to the hearsay rule. Further, since Darlene is not a person in authority, no special burden is required.
14If Ms. Pawliw testified at trial that someone told her that Mr. Devine was the assailant, her testimony would constitute inadmissible hearsay unless the statement could be shown to fall within a recognized hearsay exception. Here, however, the trial judge rejected the contention that Ms. Pawliw’s prior identification of the assailant was based on what others had told her, concluding instead that she was trying to avoid identifying Mr. Devine at trial. This finding of credibility is entitled to deference. Moreover, the trial judge explicitly concluded that the identification was based on Ms. Pawliw’s own observations. In my view, there is no reason to interfere with these findings. I will now consider whether the trial judge was correct to admit Ms. Pawliw’s statement under the principled approach to hearsay.
2.2 The Principled Approach
15Ms. Pawliw’s statement does not fall within any of the traditional exceptions to the hearsay rule. The question is therefore whether the statement meets the twin criteria of necessity and reliability.
2.2.1 Necessity
16It is conceded that the necessity criterion is made out. As this Court noted in K.G.B. and R. v. Khelawon, [2006] 2 S.C.R. 787, 2006 SCC 57, necessity does not depend on the unavailability of the witness:
As we know, the Court ultimately ruled in B. (K.G.), and the principle is now well established, that necessity is not to be equated with the unavailability of the witness. The necessity criterion is given a flexible definition. In some cases, such as in B. (K.G.) where a witness recants an earlier statement, necessity is based on the unavailability of the testimony, not the witness.
(Khelawon, at para. 78 (underlining added))
17Before turning to the question of threshold reliability, however, it may be useful to recall briefly why Ms. Pawliw’s statement constitutes hearsay even though she is present to be cross-examined, because at first blush this notion appears counter‑intuitive. Recalling why this statement constitutes hearsay will also serve to highlight the dangers of admitting the evidence in its hearsay form: Khelawon, at paras. 57-58.
18When the witness repeats or adopts an earlier out‑of‑court statement in court, under oath or solemn affirmation, no hearsay issue arises. The statement itself is not evidence; rather, the testimony is the evidence and it can be tested in the usual way by observing the witness and subjecting him or her to cross‑examination. The hearsay issue does arise, however, when the witness does not repeat or adopt the information contained in the out‑of‑court statement and the statement itself is tendered for the truth of its contents. In these circumstances, the trier of fact is asked to accept the out-of-court statement over the sworn testimony of the witness. Given the usual premium placed on the value of in-court testimonial evidence, a serious issue arises as to whether it is at all necessary to introduce the statement. In addition, the reliability of that statement becomes crucial.
19It may be readily appreciated, however, that although the underlying rationale for the general exclusionary rule may not be as obvious when the declarant is available to testify, it is the same: the difficulty of testing the reliability of the out-of-court statement. The difficulty in assessing the out-of-court statement is the reason why it falls within the definition of hearsay and is subject to the general exclusionary rule. It follows, however, that the degree of difficulty may be substantially alleviated in cases where the declarant is available for cross-examination on the earlier statement, particularly where an accurate record of the statement can be tendered in evidence.
20Here, the trier of fact is invited to consider and accept Ms. Pawliw’s prior identification of Mr. Devine for its truth, despite the fact that she testified in court under oath that she does not have any personal knowledge of the identity of the assailant — she was simply told that it was Mr. Devine. This Court stressed in K.G.B. that where the hearsay evidence is a prior inconsistent statement, reliability is a “key concern” (at pp. 786‑87):
The reliability concern is sharpened in the case of prior inconsistent statements because the trier of fact is asked to choose between two statements from the same witness, as opposed to other forms of hearsay in which only one account from the declarant is tendered. In other words, the focus of the inquiry in the case of prior inconsistent statements is on the comparative reliability of the prior statement and the testimony offered at trial, and so additional indicia and guarantees of reliability to those outlined in Khan and Smith must be secured in order to bring the prior statement to a comparable standard of reliability before such statements are admitted as substantive evidence. [Emphasis added.]
21I will now consider whether Ms. Pawliw’s statement possesses a “comparable standard of reliability” so as to warrant its admission in evidence under the principled approach to hearsay.
2.2.2 Threshold Reliability
22Since the central concern underlying the rule against hearsay is the inability to test the evidence, it follows that the reliability requirement is aimed at identifying those cases where this difficulty is sufficiently overcome to justify receiving the evidence as an exception to the general exclusionary rule. The reliability requirement is usually met in one of two ways, which are not mutually exclusive. “One way is to show that there is no real concern about whether the statement is true or not because of the circumstances in which it came about. . . . Another way of fulfilling the reliability requirement is to show that no real concern arises from the fact that the statement is presented in hearsay form because, in the circumstances, its truth and accuracy can nonetheless be sufficiently tested” (Khelawon, at paras. 62-63).
23Although the two bases are not mutually exclusive, in cases where the declarant is available to be cross‑examined, the focus will necessarily be on the latter. As this Court explained in Khelawon (at para. 76):
The most important contextual factor in B. (K.G.) is the availability of the declarant. Unlike the situation in Khan or Smith, the trier of fact is in a much better position to assess the reliability of the evidence because the declarant is available to be cross‑examined on his or her prior inconsistent statement. The admissibility inquiry into threshold reliability, therefore, is not so focussed on the question whether there is reason to believe the statement is true, as it is on the question whether the trier of fact will be in a position to rationally evaluate the evidence. The search is for adequate substitutes for the process that would have been available had the evidence been presented in the usual way, namely through the witness, under oath or affirmation, and subject to the scrutiny of contemporaneous cross‑examination.
24Indeed, in any case, as this Court stated in Couture, there is an advantage to first considering whether there are adequate substitutes for testing the evidence (at para. 87):
Although there are no hard and fast rules about the manner of conducting the hearsay admissibility inquiry, there are good reasons to look first at whether there are adequate substitutes for testing the evidence. The presence or absence of adequate substitutes is usually more easily ascertainable. Further, whenever the reliability requirement is met on the basis that the trier of fact has a sufficient basis to assess the statement’s truth and accuracy, there is no need to inquire further into the likely truth of the statement. That question becomes one that is entirely left to the ultimate trier of fact. Recall the facts in Hawkins where the witness had given contradictory versions under oath. There was certainly no basis to admit the hearsay evidence on the ground that it was inherently trustworthy. The evidence was admitted on the sole basis that there were ample substitutes for testing the evidence: it was given under oath and was subject to contemporaneous cross-examination in a hearing involving precisely the same parties and the same issues that would be dealt with at trial. The Court therefore did not engage in any threshold assessment of the trustworthiness of the preliminary hearing testimony itself.
25Here, there was no contemporaneous cross-examination as in R. v. Hawkins, 1996 154 (SCC), [1996] 3 S.C.R. 1043, but the K.G.B. requirements were found by the trial judge to have been complied with: the statement was videotaped and recorded, and before Ms. Pawliw gave her statement, a police officer explained the seriousness of making the statement, the possible consequences of giving a false statement, and administered a form of oath. These factors were identified in K.G.B. as the general attributes of in-court testimony that provide the usual safeguards of reliability (pp. 795-96). In the words of K.G.B., together with the availability of the declarant for cross-examination, these attributes bring “the prior statement to a comparable standard of reliability” such that the statement can be “admitted as substantive evidence” (p. 787).
26It is important to note that the availability of the declarant to be cross‑examined will not necessarily tip the scales in favour of admissibility. In order for this factor to weigh in favour of admission, there must be a “full opportunity to cross‑examine the witness” at trial (K.G.B., at p. 796). As this Court explained in R. v. U. (F.J.), 1995 74 (SCC), [1995] 3 S.C.R. 764, at para. 46:
The first factor contributing to reliability is the cross-examination of the witness. If the witness provides an explanation for changing his or her story, the trier of fact will be able to assess both versions of the story, as well as the explanation. However, where a witness does not recall making an earlier statement, or refuses to answer questions, the trial judge should take into account that this may impede the jury’s ability to assess the ultimate reliability of the statement.
27For example, in R. v. Post (2007), 217 C.C.C. (3d) 225, 2007 BCCA 123, the accused pointed to the trial judge’s finding that the K.G.B. factors were all present to support his argument that the witness’s police statement should be admitted under the principled approach to hearsay. A unanimous Court of Appeal rejected this argument, noting that “it is clear that the most important of these three, namely the opportunity for cross-examination, existed only notionally because while Malloway was present in the courtroom, there was no real opportunity to test her account because of her inability to recall what she saw, or to say that what she had said previously was true” (para. 65). A similar conclusion was reached in R. v. N. (T.G.) (2007), 216 C.C.C. (3d) 329, 2007 BCCA 2. The Court of Appeal in that case concluded (at para. 17):
In this case, any “full opportunity to cross-examine” was completely frustrated. There was no meaningful comparison between different accounts because Mason denied any knowledge of the facts, apart from a grudging concession that he had given a statement to the police, which he asserted was completely false.
28Here, although Ms. Pawliw recanted her identification of Mr. Devine at trial, there was a meaningful opportunity to test her evidence through cross-examination. Ms. Pawliw testified under oath that at the time she gave her statement, she was aware of the seriousness of the statement and told the truth to the best of her ability. The trial judge was able to assess the witness’s demeanour, and gave a detailed account of her evasiveness and reluctance to identify Mr. Devine in the courtroom. He concluded by stating as follows (at para. 41):
I have reviewed the manner of Ms. Pawliw giving evidence on the stand and compared it to the straightforward manner in which she described the incident, and Mr. Devine’s involvement, when she gave the KGB statement to the police. I conclude that she was trying to avoid identifying the accused from the witness stand and is trying to distance herself on the witness stand from any identification of the accused.
There is no reason to disturb the trial judge’s finding in this regard.
29Since I have concluded that there is a sufficient basis for assessing the statement’s truth and accuracy, there is no need to inquire further into the likely truth of the statement. The other indicia of reliability argued by Mr. Devine need only be considered in assessing the ultimate reliability of the statement.
2.2.3 Application of the Exclusionary Discretion
30Even where the criteria of necessity and reliability have been met, the remaining question that may arise in certain circumstances is whether the trial judge should exercise his or her discretion and refuse to admit the statement on the ground that its prejudicial effect exceeds its probative value. For example, in K.G.B., Lamer C.J. recognized the trial judge’s discretion to refuse to allow the jury to make substantive use of the statement, even where the criteria outlined in that decision are satisfied, when there is a concern that the statement may be the product of some form of investigatory misconduct (pp. 801-2; Khelawon, at para. 81). There may also be other circumstances which would warrant the exercise of the trial judge’s residual discretion, however, no such circumstances were present here. In my view, the Court of Appeal was correct to conclude that the trial judge did not err in failing to refer explicitly to the balancing of probative value against prejudicial effect.
2.3 Reasonableness of the Verdict
31Mr. Devine submits that the trial judge’s verdict is not one that a properly instructed jury acting judicially, could reasonably have rendered (see R. v. Biniaris, [2000] 1 S.C.R. 381, 2000 SCC 15, and R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168). In particular, he argues that Ms. Pawliw’s identification evidence was insufficient to ground a conviction. I agree with the majority in the Court of Appeal that the quality of the identification evidence was not ideal, and that it would have been preferable for Ms. Pawliw to have identified the assailant from a photo line-up. I am unable to conclude, however, that this renders the verdict unreasonable. Ms. Pawliw’s identification evidence was capable of supporting the trial judge’s finding that Mr. Devine was the assailant. The trial judge properly assessed the evidence and concluded that he was satisfied beyond a reasonable doubt of the guilt of the accused. I would therefore not accede to this ground of appeal.
3. Disposition
32For the above reasons, I would dismiss the appeal.
Appeal dismissed.
Solicitors for the appellant: Fix & Smith, Edmonton.
Solicitor for the respondent: Attorney General of Alberta, Edmonton.
