COURT FILE NO.: CR-10-084
DATE: 2013-03-06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
M. A. Mousseau, P. Keen, J.R. Dewson, for the Crown
- and -
KENNETH IVALL
Chris Watkins for the Accused
Applicant
HEARD: January 31, 2013, at Kenora, Ontario
Platana J.
Reasons On Section 9(2) Application
[1] In the course of this trial, the Crown brought an application pursuant to section 9(2) of the Canada Evidence Act relating to the testimony of Angela Duchene. I gave short verbal reasons and indicated to counsel that I would provide full written reasons, which follow.
[2] During the trial of Kenneth Ivall, Angela Duchene was called as a witness by the Crown. Duchene was previously a co-accused in the homicide, but later entered a plea of guilty to manslaughter roughly one month into the trial. While being examined by the Crown, Duchene claimed to have little to no recollection of the following events: 1) an interaction with Ron Lalonde in a Tim Horton’s; 2) the sounds made by Edward Wilson as his head was allegedly being stomped on by Ken Ivall; and 3) how Ivall dragged Wilson’s body onto the nearby railway tracks. When asked by the Crown, Duchene acknowledged that she had given a statement to the police, but testified she had no specific memory of what she said in the statement. She said that reviewing the statements she made to police would not help her refresh her memory. As a result, the Crown moved for a voir dire to have parts of the statement Duchene made to police entered into evidence under section 9(2) of the Canada Evidence Act, R.S., 1985, c. C-5.
[3] The day before giving the statement, which is also the day in question, Duchene was very intoxicated. She claimed to have been drinking for roughly 12 hours, mixing beer, tequila, and vodka. As well, she claims to have taken percocets and smoked marijuana. Prior to attending the police station to give an interview, Duchene claims to have smoked marijuana. Duchene claims to have been intoxicated at the time of the interview, and interestingly, the Crown accepts this position.
The 9(2) Application
[4] Section 9(2) of the Canada Evidence Act states the following:
Where the party producing a witness alleges that the witness made at other times a statement in writing, reduced to writing, or recorded on audio tape or video tape or otherwise, inconsistent with the witness’ present testimony, the court may, without proof that the witness is adverse, grant leave to that party to cross-examine the witness as to the statement and the court may consider the cross-examination in determining whether in the opinion of the court the witness is adverse.
[5] In R v McInroy, [1979] 1 S.C.R. 588, the Supreme Court of Canada held the lack of memory of a witness can be a basis for leave to cross-examine under section 9(2).
Crown Position
[6] The Crown has relied upon the decision in R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787 to acknowledge that absent an exception, hearsay evidence is not to be admitted. Hearsay includes an out of court statement made by a witness who testifies in court, if that statement is tendered to prove the truth of his contents. However, the Crown’s position is that this statement may be admitted under the principled approach of hearsay, if the indicia of reliability and necessity are established on a voir dire basis.
[7] The Crown argues that in this case the defence has conceded the issue of necessity and that issue remaining to be determined therefore is reliability.
[8] The Crown then references the decision in R. v. B. (K.G.), [1993] 1 S.C.R. 740, where the court set out three factors to consider in determining reliability:
Whether an oath has been taken;
The issue of presence, or the opportunity to see and hear the witness; and
The issue of cross-examination and not being able to rest the evidence at the time it was given.
[9] The Crown submits that the guarantees of trustworthiness can be addressed if a statement is videotaped and if there is an opportunity for cross-examination.
[10] The Crown accepts that the burden to establish reliability is on a balance of probabilities. In referencing the factors in B.(K.G.) the Crown notes that the statement in this case was not under oath, however, it was videotaped, and the Crown further submits that the defence has full opportunity for cross-examination on the statement at trial, if the statement is admitted. What remains the Crown argues is the absence of an oath.
[11] Mr. Keen then submits on the basis of Khelowan that the trial judge’s function on the voir dire is to decide only if there is threshold reliability to the statement to determine whether it should be admitted or not. He submits that the case law establishes that is it for the trier of fact to determine whether the statement will be ultimately relied upon. In considering this threshold question, Mr. Keen argues that I am entitled to look at both internal and external aspects.
[12] He submits that there are a number of reasons for me to find that the statement meets the test of threshold reliability. In particular, he points out that much of what is said in the statement is corroborated by the evidence which I have already seen in the video footage from Tim Hortons. He further argues that much of what she has said in the statement has already been testified to by previous witnesses, and therefore, can be considered as corroboration of reliability.
[13] He argues that as the statement has been videotaped, there is still now a full opportunity for cross-examination at trial. In essence, Mr. Keen submits that there is a presence of adequate substitutes in order to satisfy each of the three factors from B.(K.G.).
[14] The Crown further argues that in the circumstances of this case the statement is more prohibitive then prejudicial.
Defence Position
[15] Mr. Watkins submits that based on the decision in Khelowan, I should consider the lack of opportunity of a meaningful cross-examination to so affect the reliability that the statement should not be admitted. He argues that the best way to ensure reliability of cross-examination is if it is contemporaneous with the giving of the statement. He submits that in this case, there is no opportunity for any meaningful cross-examination and that that relates to the issue of trial fairness. He suggests what the Crown now wants to do is to fill in the gaps in the evidence against Mr. Ivall which have developed in the trial.
[16] He asked me to consider that part way through the statement, Ms. Duchene admits that she has been lying. He submits further that the statement indicates that her money is fragmented and cannot be relied upon on that basis. He suggests that many of the attitudes and mannerisms which she displays in the video are not consistent with the evidence that she is giving and that she “dances around” issues that impact on her negatively.
[17] In summary, Mr. Watkins argues that there are no other sufficient indicia of reliability in order to overcome the fact that the statement was not given under oath.
Discussion
[18] Case law regarding a section 9(2) application has evolved over the past 20 years under two Supreme Court decisions: B.(K.G.) and Khelawon. As outlined in these decisions, hearsay, while presumptively inadmissible, is admissible under the principled approach if it is necessary and reliable. In the matter currently before this court, both Crown and defence counsel agree that the necessity threshold is met in the circumstances. The issue of this voir vire concerns what is known as the “reliability threshold”.
The Reliability Threshold
[19] Reliability was revisited by the Supreme Court in Khelawon. In that case, a unanimous Court held that in some cases, because of the circumstances in which it came about, the contents of the hearsay statement may be so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process. In other cases, the evidence may not be so cogent but the circumstances will allow for sufficient testing of evidence by means other than contemporaneous cross-examination. In these circumstances, the admission of the evidence will rarely undermine trial fairness. However, because trial fairness may encompass factors beyond the strict inquiry into necessity and reliability, even if the two criteria are met, the trial judge has the discretion to exclude hearsay evidence where its probative value is outweighed by its prejudicial effect.
[20] In R. v. Khelawon, the Court stated at paras. 2, 40, and 49:
2 When it is necessary to resort to evidence in this form, a hearsay statement may be admitted if, because of the way in which it came about, its contents are trustworthy, or if circumstances permit the ultimate trier of fact to sufficiently assess its worth. If the proponent of the evidence cannot meet the twin criteria of necessity and reliability, the general exclusionary rule prevails. The trial judge acts as a gatekeeper in making this preliminary assessment of the “threshold reliability” of the hearsay statement and leaves the ultimate determination of its worth to the fact finder.
40 Concerns over the reliability of the statement also arise where W does not recant the out-of-court statement but testifies that she has no memory of making the statement, or worse still, no memory of the assault itself. The trier of fact does not see or hear the witness making the statement and, because there is no opportunity to cross-examine the witness contemporaneously with the making of the statement, there may be limited opportunity for a meaningful testing of its truth. In addition, an issue may arise as to whether the prior statement is fully and accurately reproduced.
49 The evidence, although needed, is not admissible unless it is sufficiently reliable to overcome the dangers arising from the difficulty of testing it. As we shall see, the reliability requirement will generally be met on the basis of two different grounds, neither of which excludes consideration of the other. In some cases, because of the circumstances in which it came about, the contents of the hearsay statement may be so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process. …
[21] In B. (K.G.), Lamer CJ offered the following guidance for establishing reliability at paragraph 104:
[T]he requirement of reliability will be satisfied when the circumstances in which the prior statement was made provide sufficient guarantees of its trustworthiness with respect to the two hearsay dangers a reformed rule can realistically address: if (i) the statement is made under oath or solemn affirmation following a warning to the existence of sanctions and the significance of the oath or affirmation, (ii) the statement is videotaped in its entirety, and (iii) the opposing party, whether the Crown or the defence, has a full opportunity to cross-examine the witness respecting the statement, there will be sufficient circumstantial guarantees of reliability to allow the jury to make substantive use of the statement. Alternatively, other circumstantial guarantees of reliability may suffice to render such statements substantively admissible, provided that the judge is satisfied that the circumstances provide adequate assurances of reliability in place of those which the hearsay rule traditionally requires.
Oath or solemn affirmation
[22] In the current matter, the witness, Ms. Duchene, did not provide an oath or solemn affirmation before making a statement to police in March 2009. In R. v. Trieu (2005), 74 O.R. (3d) 481 (C.A.), two of the perpetrators of the home invasion made statements to the police inculpating the accused, and later recanted. The trial judge ultimately admitted the statements for their truth. The statements were videotaped by the police, but the statements were not taken under oath and the police did not warn the witnesses of the consequences of providing false statements. The Court of Appeal dismissed the appeal, finding that the statements were admissible.
[23] At para. 78, it was stated that:
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. [Emphasis Added]
[24] In some circumstances, the existence of an oath or solemn affirmation can be useful. But in these circumstances, similar to those in Trieu, there is a videotaped statement from police as well as an opportunity for the defence to cross-examine the witness. As a result, the lack of an oath or solemn affirmation does not factor significantly in to my decision to allow the statements.
Videotaped
[25] Here, the statement Ms. Duchene made to police has been recorded on video. The quality of audio and visual of the video would allow the trier of fact to assess not only the statements provided to police, but also the demeanour of the witness, which is of some evidentiary importance.
[26] In R. v. K. (G.B.), in discussing the reliability threshold, Chief Justice Lamer, writing for the majority, noted at para. 98 that all of the indicia of reliability “are available to the trier of fact when the witness's prior statement is videotaped.” Justice Cory, dissenting in part, expanded upon Lamer CJ’s comments at para. 172, saying that “the videotaped statement, with its complete and comprehensive record of the questions posed, the answers given and the demeanour of the witness, will often serve as a complete answer to the issues of reliability and voluntariness of the statement.”
Ability to cross-examine
[27] Ms. Duchene testified that she recalls waking up the morning she gave her statement to police, recalls seeing the accused sleeping beside her, and recalls smoking marijuana when she woke up. However, she claims to be unable to recall anything that she said in the during the statement, and interestingly, cannot recall even going to the OPP detachment that day. Mr. Watkins attempted to elicit some information from the witness during cross-examination at the voir dire, but was repeatedly confronted by Ms. Duchene’s lack of memory. Mr. Watkins argues that the full veracity of the witness cannot be tested through cross-examination, which in turns, violates the accused’s constitutional right to a fair trial.
[28] In R. v. Biscette (1997), 110 C.C.C. (3d) 285 (S.C.C.), Madam Justice L’Heureux-Dubé, where writing for a unanimous Supreme Court, held at para. 2 that “where defence counsel is unable to effect a complete cross-examination owing to a witness' failure of memory, this alone is not a reason to bar admission of the prior inconsistent statement for its substantive use.” Her Honour went on to note that this is a factor to be considered in respect to the weight of the prior statement instead.
[29] It would appear, based on the statement of law from Biscette, that the proper course would be to allow the statement to be entered into evidence, and leave ability to cross-examine a matter for the jury to consider when assessing what weight to give the evidence.
Probative versus prejudice
[30] The final consideration requires a balancing of the probative value of the evidence against its prejudicial effect. As was stated at para. 49 in Khelawon, because trial fairness may encompass factors beyond the strict inquiry into necessity and reliability, “even if the two criteria are met, the trial judge has the discretion to exclude hearsay evidence where its probative value is outweighed by its prejudicial effect.”
[31] In this case, the Crown argues that the probative value of the video statement is extremely high as it shows planning and deliberation on the part of the accused. The defence argues that the statement’s prejudicial effect outweigh its probative value because the witness was possibly under the effects of marijuana at the time the statement was made, and had consumed a “mind boggling” amount of alcohol the day before, resulting in short term memory loss.
[32] In R v. F.J.U., [1995] 3 S.C.R. 764, Chief Justice Lamer stated at para. 49:
I would also highlight here the proviso I specified in B. (K.G.) that the trial judge must be satisfied on the balance of probabilities that the statement was not the product of coercion of any form, whether involving threats, promises, excessively leading questions by the investigator or other person in a position of authority, or other forms of investigatory misconduct.
[33] In B.(K.G.), Chief Justice Lamer also stated at para. 120:
Thus, to summarize the discussion of the voir dire: in the part of the voir dire addressing the new rule, the trial judge must first satisfy him or herself that the indicia of reliability necessary to admit hearsay evidence of prior statements […] are present and genuine. If they are, he or she must then examine the circumstances under which the statement was obtained, to satisfy him or herself that the statement supported by the indicia of reliability was made voluntarily if to a person in authority, and that there are no other factors which would tend to bring the administration of justice into disrepute if the statement was admitted as substantive evidence. In most cases, as in this case, the party seeking to admit the prior inconsistent statements as substantive evidence will have to establish that these requirements have ben satisfied on the balance of probabilities.
[34] I have examined the circumstances of the video statement in the matter before the court. Throughout the interview with police, which she attended voluntarily, Ms. Duchene appears to be coherent and communicative. The conversation is friendly and the questioning officer, at least initially, does not appear to be treating Ms. Duchene as a suspect. She provides police with detailed answers about her circumstances, her friends, and the prior day’s events. Midway through the interview, when she admits to washing the deceased’s blood off various articles of clothing, Ms. Duchene is cautioned that she may be charged with obstructing justice and informed of her rights. Nevertheless, she continues providing a statement. Later on in the interview, when she admits to striking the deceased around the material time, she is cautioned a second time, this time for murder.
[35] In my opinion, this statement was not the product of coercion. At all times in the video statement, it is clear the Ms. Duchene is well aware of the fact she’s speaking to a person in authority. To use the phraseology of Justice Iacobucci in R. v. Oickle, 2002 SCC 29, [2002] 2 S.C.R. 3 at para. 91, I do not believe there is any police conduct that would “shock the community”, or tend to bring the administration of justice into disrepute. Whether Ms. Duchene was intoxicated or under the influence of drugs at the time of the interview is a matter for the jury to consider when assessing how much weight should be given to the statement.
[36] I therefore find that the statement is necessary and, on a balance of probabilities, that the statement is likely to be reliable. The statement is admitted into evidence for the truth of its contents.
___”original signed by”
Mr. Justice T. A. Platana
Released: March 6, 2013
COURT FILE NO.: CR-10-084
DATE: 2013-03-06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
KENNETH IVALL
Applicant
REASONS ON APPLICATION
Platana J.
Released: March 6, 2013