SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

DOAN NGUYEN

RULING ON APPLICATION

TO ADMIT HEARSAY STATEMENTS

BEFORE THE HONOURABLE MADAM JUSTICE M. FUERST

on January 31, 2013,

at NEWMARKET, Ontario

APPEARANCES:

B. McCallion Counsel for the Crown

P. Rochman Counsel for Doan Nguyen

THURSDAY, JANUARY 31, 2013

RULING ON APPLICATION TO

ADMIT HEARSAY STATEMENTS

Fuerst J (Orally)

Introduction

As a result of a "911" call, police officers went to the area of a gas station at Finch Avenue West and Weston Road around 6:00 a.m. on September 29, 2005. There they found Hung Manh Hoang in the front passenger seat of a car driven by John Le. Mr. Hoang had been shot three times in the back and once in the chest.

Mr. Hoang's breathing was shallow, he was in a lot of pain, and he was moving in and out of consciousness. An officer noticed an odour of alcohol on his breath. Mr. Hoang was taken by ambulance to Sunnybrook Hospital.

At trial, Mr. Hoang described his activities on the early morning of September 29th. He said that he had been at a karaoke bar drinking with friends, Mr. Le and Doan Nguyen, whom he knew by the name Dead Dog. He owed $130,000 to Dead Dog as a gambling debt. That night Dead Dog

complained about his wife being unfaithful, but Mr. Hoang told him it was not so. Mr. Hoang testified that he and Dead Dog were getting along well that night and there was no argument.

Mr. Hoang said that he left the bar, got into his Ferrari, and drove a short distance away. While he was stopped at a traffic light, someone opened the driver's door of the car and shot him. He said that he did not see the person who shot him. He saw only a hand holding a gun pointed at his head.

In examination in-chief, Crown counsel, Mr. McCallion, tried to refresh Mr. Hoang's memory from the notes Constable Juin Pinto and Detective David Kingston made of conversations with him in the hours after the shooting. Both statements were made while Mr. Hoang was in the trauma unit of Sunnybrook Hospital.

Mr. Hoang said that he did not remember speaking to any police officer and the notes did not refresh his memory.

Mr. McCallion applies under the principled exception to the hearsay rule to introduce the two statements as substantive evidence.

The Statements

The first statement was made to Constable Pinto, a uniformed officer of the Toronto Police Service, sometime between 6:45 and 7:45 a.m. Mr. Hoang was in the hospital's trauma unit, wearing an oxygen mask and lying on a gurney. Constable Pinto did not know where or how the shooting occurred. He asked Mr. Hoang a series of questions about what happened to him. In answer, Mr. Hoang told him that he was at a karaoke bar drinking with a male friend named "Doan" or "Doang", as spelled phonetically by the officer. He owed the friend over $100,000 as a gambling debt. After Mr. Hoang said that the friend's wife was having an affair, the man became angry and argued with him. The friend said that Mr. Hoang had lost face with him. Mr. Hoang left the bar and got into his Ferrari. The next thing he knew, the friend was shooting him. After being shot, Mr. Hoang drove away.

Constable Pinto said that he did not threaten or pressure Mr. Hoang or offer him any inducements.

Constable Pinto wrote down the questions and answers in his memo book. He wrote down each question he posed before he asked it, and then wrote down Mr. Hoang's answer. He said that Mr. Hoang was in a lot of pain and his responses were slow, but they understood one another.

The officer did not read the questions and answers back to Mr. Hoang at the end of the conversation.

Constable Pinto said that he passed on the information he got from Mr. Hoang to officers Kingston and Alvarez of York Regional Police, between 9:09 and 9:30 a.m.

The second statement was given to Detective Kingston of York Regional Police. He said that he spoke to Mr. Hoang in the hospital's trauma unit at 9:13 a.m., after speaking with Constable Pinto and his partner. Mr. Hoang was alert and appeared to understand the questions Detective Kingston asked him.

Detective Kingston said that he asked Mr. Hoang what had happened. Mr. Hoang said, "Doang shot me. I was at a gambling house. I had lost over $100,000." The officer asked Doang's last name, and Mr. Hoang said that he did not know. The officer asked how old Doang was, and Mr. Hoang said he guessed around 31 years.

The officer made brief, and not entirely verbatim, notes of the conversation in his notebook.

Detective Kingston said that he did not threaten Mr. Hoang or promise him anything.

Dr. Lynne Fulton was a staff emergency physician and trauma team leader at Sunnybrook Hospital in September 2005. She did not remember dealing with Mr. Hoang, but testified about his treatment based on the hospital records. He received a morphine-like drug for pain at some time after he arrived, again at 7:07 a.m., and a third time at 7:55 a.m. She said that the drug was unlikely to have impaired him. A trauma unit record indicated that his level of consciousness was normal throughout the time he was on the unit. Notations made in the records at 6:40, 7:00 and 9:00 a.m. indicated that he had a normal level of consciousness at those specific times. He was alert, oriented and responded to the questions of hospital staff appropriately. Dr. Fulton could not comment, however, on the accuracy of Mr. Hoang's responses or his memory.

Dr. Fulton said that Mr. Hoang suffered a fracture of the thoracic spine, which caused paralysis of his legs from the time the injury was sustained.

The Positions of the Parties

On behalf of the Crown, Mr. McCallion submits that both statements are admissible as substantive evidence under the principled exception to the hearsay rule. He contends that the necessity criterion is satisfied because this is the only way to get before the court Mr. Hoang's evidence that Mr. Nguyen shot him. He relies on what he contends are striking similarities between the statements and Mr. Hoang's testimony at trial on several points as sufficient indicia of reliability, in accordance with the reasoning in R. v. U.(F.J.), 1995 74 (SCC), [1995] 3 S.C.R. 764. In the alternative, he submits that the statements are admissible as original evidence of identification, in accordance with the holding in R. v. Langille (1990), 1990 6782 (ON CA), 59 C.C.C. (3d) 544 (Ont. C.A.)

On behalf of Mr. Nguyen, Ms. Rochman submits that the Crown has failed to establish necessity because Mr. McCallion did not bring a Section 9 application in accordance with the procedure set out in R. v. B.(K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740. Further, the Supreme Court of Canada did not suggest in U.(F.J.) that reliability can be found in the striking similarities between a witness’s prior statement and his own testimony at trial. In this case, indicia of reliability, including the importance of telling the truth to the police being brought home to the witness, are lacking. Ms. Rochman contends that the decision in Langille has no application in the circumstances of this case.

The Legal Framework

In R. v. Khelawon, 2006 SCC 57, the court reiterated that hearsay evidence is presumptively inadmissible. The difficulty of testing hearsay evidence because of the absence of opportunity for contemporaneous

cross-examination of the declarant underlies the exclusionary rule. Hearsay statements may be admitted, however, under the principled exception to the rule if the indicia of necessity and reliability (meaning threshold reliability and not whether the hearsay evidence will ultimately be relied on by the trier of fact) are established on a voir dire. The onus is on the party who seeks to adduce the evidence to establish both necessity and reliability on a balance of probabilities. Even if both criteria are met, the trial judge has the discretion to exclude the hearsay evidence where its probative value is outweighed by its prejudicial effect.

At paragraph 49 the court explained the twin criteria in this way:

The criterion of necessity is founded on society’s interest in getting at the truth. Because it is not always possible to meet the optimal test of contemporaneous cross-examination, rather than simply losing the value of the evidence, it becomes necessary in the interests of justice to consider whether it should nonetheless be admitted in its hearsay form. The criterion of reliability is about ensuring the integrity of the trial process. The evidence, although needed, is not admissible unless it is sufficiently reliable to overcome the dangers arising from the difficulty of testing it...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.

Put another way, in the former instance the circumstances in which the out-of-court statement came about provide sufficient comfort in its truth and accuracy, while in the latter the circumstances are such that the trier of fact will be able to test the truth and accuracy of the statement even though the declarant does not give that evidence in court.

On this application, both necessity and reliability are in issue. Although I will address the two criteria in turn, I appreciate that one may impact on the other.

Analysis

1. Necessity

In this case the declarant, Mr. Hoang, was available to and did testify. He gave evidence that is inconsistent with his prior statements to Constable Pinto and Detective Kingston. Crown counsel asserts that by naming “Doan” or “Doang” and in the context of other information he gave, Mr. Hoang identified Mr. Nguyen as his shooter. At trial, however, he said that he did not see the person who shot him. When asked to refresh his memory, he said that he did not remember speaking to the police officers.

Accordingly, this is a situation where the basis of the Crown's necessity argument is not that the witness is deceased, incompetent to testify, or otherwise unavailable. It is that while the witness is available, the testimony is not. Substantive admission of the out-of-court statements is said to be necessary because evidence of the same quality cannot be obtained at trial.

In R. v. U.(F.J.), a case that addressed substantive admissibility of a witness's prior inconsistent statement, Chief Justice Lamer writing for the majority said at paragraph 46,

I set out the proper procedure for the

voir dire in my reasons in B.(K.G.) at

pp. 297-301. After the calling party invokes s. 9 of the Canada Evidence Act, and fulfils its requirements in the voir dire held under that section, the party must then state its objectives in tendering the statement. If the statement will only be used to impeach the witness, the inquiry ends at that point. If, however, the calling party wishes to make substantive use of the statement, the voir dire must continue so that the trial judge can assess whether a threshold of reliability has been met. The necessity criterion need not be assessed as it is met whenever a witness recants.

In this case, Mr. McCallion chose not to make a Section 9 application in respect of either statement once Mr. Hoang said that looking at the officers' notes of the statements did not refresh his memory. While I found in an earlier ruling that Mr. McCallion made this decision on the basis of a good faith misunderstanding of the law, it does not change the fact that the steps set out in B.(K.G.) were not followed. This is not a mere procedural irregularity. In the context of a prior inconsistent statement, necessity arises only if the witness refuses or fails to adopt his prior statement at trial. Unless and until the Crown resorts to at least the procedure provided for in Section 9(2), it cannot be said that the witness has refused or failed to adopt his prior statement such that evidence of the same quality cannot be obtained at trial.

I am unable to find that the Crown has established necessity on a balance of probabilities in respect of either statement.

2. Reliability

Even if Mr. McCallion followed the procedure set out in B.(K.G.) and Mr. Hoang maintained that he did not recall making the statements to the police such that necessity was established, I am not satisfied on a balance of probabilities of threshold reliability in respect of either statement.

Mr. Hoang was available to be cross-examined at trial on the prior statements. Accordingly, as expressed in Khelawon, at paragraph 7, the inquiry into threshold reliability is not so focused on whether there is reason to believe the particular statement is true, as was the case in R. v. Khan, 1990 77 (SCC), [1990] 2 S.C.R. 531, as it is on whether there are adequate substitutes for the oath or affirmation, seeing and hearing the witness when the statement was made, the existence of an accurate record of what was said, and contemporaneous cross-examination such that the trier of fact can rationally evaluate the statement, as was the case in B.(K.G.).

I am unable to find that there were adequate substitutes in respect of either statement. While Constable Pinto was in uniform, there is no evidence that he told Mr. Hoang that he was a police officer, and no evidence that he warned him in any fashion of the importance of speaking the truth to a police officer, much less that he would be amenable to prosecution for lying. The statement was not taken under oath or affirmation. It was not video or audio recorded so that Mr. Hoang’s words could at least be heard. While Constable Pinto wrote down the questions asked and answers provided verbatim, he did not review his notes with Mr. Hoang to confirm their accuracy. I also take into account that, where a witness does not recall making the prior statement, the ability of the trier of fact to assess the ultimate reliability of the statement may be impeded: see U.(F.J.), at paragraph 46.

Similarly, there is no evidence that Detective Kingston told Mr. Hoang that he was a police officer, and no evidence that he warned him in any fashion of the importance of speaking the truth to a police officer, much less that he would be amenable to prosecution for lying. The statement was not taken under oath or affirmation. It was not video or audio recorded so that Mr. Hoang’s words could at least be heard. It was not even recorded verbatim in the officer’s notebook. He did not review his notes with Mr. Hoang to confirm their accuracy.

Mr. McCallion relies on U.(F.J.) to argue that the statements should be admitted because they are strikingly similar to Mr. Hoang’s testimony at trial such that there is no real concern about whether he was speaking the truth to the police. The problem with this submission is that it ignores the foundation for the finding of reliability in U.(F.J.). There, the striking similarities were between the complainant’s statement to the police, and an independent piece of evidence, the accused’s statement to the police. As the court pointed out at paragraphs 41 and 51, striking similarities between statements made by two persons independently of one another renders fabrication highly unlikely, so that the only likely explanation is that both persons were telling the truth in their statements. That cannot be said about similarities, even striking similarities, between what a witness testifies to at trial, and his own earlier out-of-court statement. The statement and the testimony are not independent of one another. Indeed, prior statements of a witness consistent with his testimony at trial generally are viewed as

self-serving and easily fabricated: see

R. v. Jones (1988), 1988 7142 (ON CA), 44 C.C.C. (3d) 248 (Ont. C.A.). Even in Khelawon, the possibility the court left open in considering indicia of reliability was the presence of striking similarities between the statements of different complainants.

I also agree with Ms. Rochman that comparison between a witness's prior statement and his subsequent testimony at trial often will reveal striking similarities. It is hardly the "rare case” to which the majority in U.(F.J.) anticipated their reasoning would apply: see paragraphs 45 and 47.

Even if I consider reliability based on the circumstances in which the statements were made, those circumstances do not provide sufficient comfort in the truth and accuracy of either statement. The statements were not made naturally and without prompting, but rather in response to questions asked by the officers. Although Constable Pinto was in uniform, neither officer testified that he identified himself to Mr. Hoang as a police officer. The statements were made soon after the shooting, but it cannot be said, as it was in Khan, that that feature removed any concern about inaccurate memory on Mr. Hoang’s part. Mr. Hoang was in the trauma unit of a hospital when he spoke to each officer, he had been shot four times and was in obvious pain, he was receiving a narcotic to control his pain, and he was wearing an oxygen mask. I acknowledge that Dr. Fulton testified that based on the hospital records, while he was in the trauma unit Mr. Hoang had a normal level of consciousness, was alert, oriented, and responded appropriately to questions. She could not vouch, however, for the truth or accuracy of his responses about the events or his memory of them. It is significant that the statements are not confirmed by objective evidence, as was the case in Khan. Rather, they are contradicted in significant aspects. Mr. Hoang's description to Constable Pinto of the shooting suggested that it occurred when he was in his car outside the karaoke bar, but, in fact, it occurred after he had driven away to a nearby intersection; he told the officer that after the shooting he drove away, which Dr. Fulton said was not possible because the spinal injury resulted in paralysis of his legs; and he told the officer that Mr. Le was not there, yet there is a body of evidence that Mr. Le was at the scene and transported Mr. Hoang from it in his BMW. Detective Kingston said that Mr. Hoang told him that he was shot by a man named “Doang” who was about 31 years old. Mr. Nguyen, whose given name is “Doan”, was 47 years old at the time.

3. The “Langille” Principle

Mr. McCallion argues in the alternative that the statements are admissible as original evidence going to the issue of identification.

In R. v. Langille, a woman was robbed by a man she did not know. She gave the police a description of him, the car he drove, and the gun he displayed. She identified the accused as the robber in a photo array. At trial, she recounted her descriptions, and identified the accused in court as the robber. The police officers with whom she dealt testified at trial and recited the descriptions she provided as well as her response to the photo array. The Ontario Court of Appeal held that the evidence of the witness’s descriptions and previous identification of the perpetrator was admissible as original evidence going to the issue of identification, and was properly viewed as an exception to the rule against hearsay and the acceptance of prior consistent statements. The court reasoned that because identification of an accused person for the first time in the dock at trial is notoriously suspect, the trier of fact ought to hear the identification narrative establishing that the witness was able to give a description and make an identification soon after the event.

This is not a case in which the reliability and/or credibility of a witness's identification of a stranger at trial is an issue. Mr. Hoang testified that at the time of the shooting, Mr. Nguyen was a very close friend whom he saw virtually every day and with whom he spent hours that night. Neither the holding in Langille nor the rationale for it apply to this case.

Conclusion

The application to admit Mr. Hoang's statements to Constable Pinto and Detective Kingston under the principled exception to the hearsay rule, and alternatively under the "Langille" principle, is dismissed.

FORM 2

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))

Evidence Act

I, Tracey Beatty, certify that this document is a true and accurate transcript of the recording of R. v. Doan Nguyen in the Superior Court of Justice held at 50 Eagle Street West, Newmarket, Ontario, on January 31, 2013, taken from Recording No. 4911-403-20130131-094228 which has been certified in Form 1.

Tracey Beatty

Tracey Beatty, Certified Court Reporter

March 12, 2013

Transcript Ordered: January 31, 2013
Transcript Completed: March 12, 2013
Ordering Party Notified: March 12, 2013