ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-10-2017
Delivered Orally: January 11, 2012

BETWEEN:

HER MAJESTY THE QUEEN – and – TIMOTHY CARTER and DONALD DODD Defendants

Jennifer Holmes and Roger Dietrich, for the Crown

Colin D. Adams and Anthony LaBar, for Timothy Carter
Gordon D. Cudmore and Dale Ives, for Donald Dodd

ruling on the admissibility of out of court statements

Pomerance J.:

[ 1 ] In an earlier ruling, I allowed the Crown’s application, under s. 9(2) of the Canada Evidence Act , to cross-examine Adelino Moreira on prior statements made to undercover officers on December 15 and 16, 2008. These statements were made in the context of what is sometimes described as a “Mr. Big” scenario. Undercover officers posed as members of a criminal organization, befriended Mr. Moreira, and invited him to join the group.

[ 2 ] The crown has cross-examined Mr. Moreira to little effect. He has refused to adopt the content of his earlier statements to undercover officers. In many instances, he has professed a lack of memory about the statements and about the relevant events. The Crown has now brought a “KGB” application. It seeks to introduce the videotaped statements of Mr. Moreira on December 15 and 16, 2008, as substantive evidence at the trial. The Crown seeks to introduce this evidence to demonstrate that Mr. Moreira burned down the garage in which the murders were alleged to have taken place, and that he did so on the request of Mr. Carter. If the jury were to find that Mr. Carter directed the burning of the garage this would constitute evidence of after the fact conduct, capable of supporting an inference of guilt.

[ 3 ] I have determined that the out-of-court statements of Mr. Moreira are not admissible for their truth before the jury. My ruling will, by necessity, be brief as I am anxious to minimize disruption of the trial before the jury.

[ 4 ] It is common ground that the criterion of necessity is met. The issue to be determined is whether the Crown has discharged its onus to demonstrate threshold reliability on the balance of probabilities.

[ 5 ] In my earlier ruling, I observed that Mr. Moreira appeared to have only a passing acquaintance with the truth. While I remain of that view, it is not for me to assess the ultimate reliability of his evidence. That is clearly a task for the jury and I must not usurp its fact finding function. I am mindful of my limited role in assessing the admissibility of the evidence and the vital distinction between threshold and ultimate reliability.

[ 6 ] Threshold reliability was described in R. v. Couture , 2007 SCC 28 , 2007 S.C.C. 28 , at para. 80 :

Since the central underlying concern about hearsay is the inability to test the truth and accuracy of the statement, the reliability requirement is aimed at identifying those cases where this concern sufficiently overcome to justify receiving the evidence regardless of this difficulty. As explained in Khelawon , the criterion of reliability is usually met either because of the way in which the statement came about, its contents are trustworthy, or where circumstances permit the ultimate trier of fact to sufficiently assess its worth. These two ways of demonstrating sufficient reliability are not mutually exclusive and factors relevant to one can complement the other. I now turn to the trial judge’s ruling on this question.

[ 7 ] The first question is whether the circumstances of the statement are such that the jury can assess weight and reliability. In this case, the communications are videotaped. The jury will have a full opportunity to view the encounters and to assess demeanour as it may affect credibility. The courts have recognized that the existence of videotape and the presence of the declarant to be cross-examined at trial will usually go a long way toward overcoming the traditional hearsay dangers. In this case, the jury has the benefit of videotape and Mr. Moreira is present in the witness box.

[ 8 ] However, more recent authorities have made it clear that the court must assess the quality of cross-examination that may be conducted on the declarant. In the normal course, when the declarant is available as a witness, he or she can be cross-examined about why he or she has resiled from the earlier utterance. This cross-examination will assist the jury in assessing the ultimate reliability of the out-of-court statement, as well as the trial testimony. However, where the declarant professes a lack of memory, the ability of opposing counsel to test veracity of the utterance is substantially curtailed. In those circumstances, it becomes difficult if not impossible for the jury to determine whether or how much to rely upon the out-of-court statement.

[ 9 ] This was the issue in R. v. James , 2011 ONCA 839 , in which a witness recanted an out of court identification. The trial judge applied the principled approach to the hearsay rule and allowed the Crown to introduce the out-of-court statement made during a photo array. In overturning the conviction, Doherty J.A. noted that the reliability of that statement could not be meaningfully assessed by the jury, because of the witness’ professed lack of memory. He stated at para. 44:

This case is more like R. v. Post , 2007 BCCA 123 , leave to appeal to S.C.C. refused, [2007] S.C.C.A. No. 207, at para. 65, where the witness’s prior statement was found inadmissible in part because the witness’s professed inability to recall the statement or the relevant events rendered the opportunity to cross-examine that witness at the trial valueless as a means of testing the reliability of that statement: see also R. v. T.G.N. , 2007 BCCA 2 , at paras. 16-17 .

[ 10 ] In the case of T.G.N. , 2007 BCCA 2 , cited by Justice Doherty above, Justice MacKenzie stated the following in 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. In these circumstances, the presumption of inadmissibility can only be overcome if the circumstances demonstrate a degree of reliability that it can be admitted into evidence in the search for truth without undermining the integrity of the trial process that normally depends on the right of an accused to test the evidence against him through cross-examination.

[ 11 ] The same may be said in this case. Mr. Moreira did offer responses to questions from time to time. He asserted on a few occasions that he was telling the undercover officers what they wanted to hear. On other occasions, he denied that the statements made to the officers were true. However, in the vast majority of instances, Mr. Moreira asserted that he had no memory. Mr. Moreira asserted that he had no memory of the events and that he had no memory of the statement. On various occasions, he asserted no memory of the statement just moments after watching the statement played in court. Mr. Moreira asserted a lack of memory on at least 16 occasions during the 33 pages of transcript reflecting the Crown’s cross-examination under s. 9(2). He sought persistent refuge in his lack of memory, particularly when he perceived that it was in his interests to do so. There is no reason to believe that Mr. Moreira will be any more forthcoming during cross-examination by the defence.

[ 12 ] I find this is not a case in which the presence of the declarant in the witness stand will go any distance in overcoming the traditional hearsay dangers.

[ 13 ] I must go on to consider whether the circumstances of the statement are such that it is inherently trustworthy. There is grave concern over the trustworthiness of Mr. Moreira’s assertions. Mr. Moreira was presented with an opportunity to join a criminal organization. This itself provided an incentive for him to exaggerate his criminal prowess. The incentive to exaggerate increased as officers offered him tangible inducements. Mr. Moreira was tantalized by the promise of money, cigarettes, cocaine and a lucrative position with an active and profitable crew. His desire to impress those individuals is apparent from the videotape. So, too, was his willingness to exaggerate or fabricate circumstances that might enhance his qualifications. Mr. Moreira made several fantastic assertions, in which he portrayed himself as a powerful criminal. These included his assertion that he ran the range when he was in jail, that he employed bikers as muscle, that he directed that someone’s ankle be broken, and that he robbed a butcher store for several thousand dollars.

[ 14 ] Other assertions were less fantastic on their face, but likely untrue given other evidence adduced at trial. For example, Mr. Moreira insisted that he had destroyed a cell phone whereas other evidence would suggest that the phone was seized from him after his arrest in July 2008.

[ 15 ] The Crown argued that while some of Mr. Moreira’s assertions are clearly untrue, the transcripts disclose a gradual build-up to the truth. The Crown relied upon the references made by the undercover officers to the importance of trust and to the ability of their superior to check out Mr. Moreira’s stories. This technique was effectively used by the officers on December 16, 2008, when they confronted Mr. Moreira with newspaper reports about the killings. The officers used those clippings as a basis for doubting what Mr. Moreira had previously said and emphasizing to him the importance of being truthful. The Crown has argued that these circumstances served as an effective substitute for an oath.

[ 16 ] I cannot agree. These circumstances are very different than an oath, or the usual oath substitutes. Oaths and their substitutes are designed to emphasize the importance of telling the truth for religious or moral reasons – telling the truth for the sake of the truth. The “Mr. Big” scenario fosters a very different objective. It emphasizes the importance of telling a story that will be acceptable to the criminal organization and that will not be detected as false. Depending on the type of inducements offered to the target, he or she may have a compelling motive to falsify in order to gain the acceptance of the criminal organization. This is not to say that statements made in the context of a “Mr. Big” scenario are necessarily false ( see R. v. Osmar , 2007 ONCA 50 , 2007 84 O.R. (3d) 321 ). It is only to say that the circumstances of a “Mr. Big” scenario must be treated very differently than an in-custody interrogation accompanied by an oath.

[ 17 ] In this case, even after Mr. Moreira was confronted with newspaper items, he continued to lie to the undercover officers. Mr. Moreira had an incentive to avoid lies that could be proven false by “Mike”, the so-called leader of the crew. But there is no indication that he became faithful to the truth. For example, he insisted that he had destroyed his cell phone, whereas other evidence would suggest that the phone was seized from him by the police upon his arrest. Mr. Moreira’s assertion that he burned down the garage at Mr. Carter’s request would have portrayed Mr. Moreira as “solid” – as someone that would help a criminal confederate by destroying evidence. Mr. Moreira may have seen this as something that would advance his interests with the criminal organization. At the same time, it is an assertion that could not readily be verified or disputed by the criminal organization. To that extent, Mr. Moreira had an incentive to make the statement whether or not it was true.

[ 18 ] In summary, having regard to the circumstances surrounding the statements, the content of the statements, and the evasive nature of Mr. Moreira’s testimony, I find that the Crown has not established the requisite criterion of threshold reliability. There is no indication that the statements are sufficiently trustworthy to be placed before the jury, nor do the circumstances allow the jury to meaningfully assess reliability. I conclude that Mr. Moreira’s statements to undercover officers on December 15 and 16, 2008, are not admissible as substantive evidence at the trial.

Renee M. Pomerance
Justice

Delivered Orally: January 11, 2012

COURT FILE NO.: CR-10-2017

ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN – and – TIMOTHY CARTER and DONALD DODD
ruling on admissibility of out of court statements
Pomerance J.

Delivered Orally: January 11, 2012