ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 13-30000628-0000

DATE: 20140220

BETWEEN:

HER MAJESTY THE QUEEN
(Applicant)

– and –

MINH HOANG TRAN
(Respondent)

Molly Flanagan, for the Applicant

Mitchell Chernovsky, for the Respondent

HEARD: January 13-17, 20, 2014

DUNNET J.: (Orally)

RULING ON VOIR DIRE

[1] The respondent is charged with armed robbery, robbery and wearing a disguise in two bank robberies.

[2] The Crown applies to adduce at trial the videotaped statement of Taiseer Abubakar made on September 24, 2012. The seminal authorities on adducing a prior inconsistent statement for its truth are R. v. B.(K.G.) [K.G.B.], 1993 116 (SCC), [1993] 1 S.C.R. 740, and R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787. The party seeking to adduce the statement must establish on a balance of probabilities that it meets the requirements of necessity and reliability. There is no issue that the requirement of necessity has been met.

[3] To be admissible, the statement must be sufficiently reliable to overcome the dangers of admitting it for its truth: the absence of an oath or solemn affirmation when the statement was made; the inability of the trier of fact to assess the demeanour and, therefore, the credibility of the witness when the statement was made; and the lack of contemporaneous cross-examination by the opposing party (K.G.B., at para. 32). On the admissibility inquiry, all relevant factors should be considered, including the presence of supporting and/or contradictory evidence (Khelawon, at para. 4).

[4] The respondent’s position is that there are insufficient safeguards to establish threshold reliability to admit the statement as evidence for the truth of its contents. Further, there was no opportunity to conduct a full cross-examination of Mr. Abubakar in order to provide a basis on which to assess the reliability of his statement.

Factual Background

[5] On October 7, 2011, a person wearing a rubber Halloween mask, a winter hat and a long, dark coat entered the Scotiabank at 4723 Steeles Avenue East in Toronto. The suspect was described as carrying a gun and 5’4” to 5’8” tall. The suspect approached the first teller and demanded cash. The teller put money into the bag that the suspect was carrying.

[6] The suspect approached the next teller, pointed the gun at the ceiling and fired a single shot. The suspect pointed the gun at the teller and demanded cash, which she placed in the suspect’s bag.

[7] The suspect pointed the gun at the third teller and demanded cash and the teller handed the suspect money. Approximately $4000 was taken.

[8] The suspect fled in a 1995 to 1998 green Nissan Altima or Maxima, which a witness reported as having licence plate number BXKF 934. A slightly different plate number, BFKX 934, had been reported stolen a few weeks earlier.

[9] A blank round was found near the counter where the suspect fired the gun.

[10] On December 8, 2011, two individuals entered the Scotiabank at 6019 Steeles Avenue East in Toronto. The first suspect, who was masked with sunglasses and a hooded jacket, vaulted over the counter and began to demand cash from the tellers. The second suspect, who was carrying a gun and wearing sunglasses and a black toque, ordered the staff and customers to get down on the ground.

[11] The first suspect was described as 5’3” to 5’6” tall, possibly of Chinese descent. The second suspect was described as a black male between eighteen and twenty-four years of age, 5’11” tall, with a medium build and a square jaw.

[12] The first suspect emptied cash drawers into a backpack, including a bundle of money that contained a red dye pack. The suspects fled in a 1993 grey Honda Civic with licence plate number 205 TFF, which had been reported stolen six weeks earlier. Approximately $5000 was taken.

[13] Inside the Honda, the police found a cigarette butt containing DNA that matched the DNA profile of Mr. Abubakar. They also found red dye stains consistent with the explosion of a dye pack.

[14] On September 7, 2012, Mr. Abubakar was arrested and charged with the December 8 robbery. He gave a thirty minute videotaped statement to Police Officers Terrence Kelly and Nunzio Tramontozzi. During the statement, he was informed by the police that his DNA had been found on the cigarette in the stolen Honda; red dye from the money had been found inside the Honda, and his friend’s mother had identified him on surveillance images.

[15] On this voir dire, Officer Kelly described Mr. Abubakar’s reaction when he was confronted with the police evidence as “shocked.” He testified that it seemed as if his mind was spinning as he tried to decipher the evidence against him and decide what he wanted to say. Nonetheless, he maintained throughout the statement that he did not know anything about the robbery.

[16] Police Officer Jason Taylor testified that following Mr. Abubakar’s statement on September 7, 2012, he was directed to arrest the man on a further charge, possession of a stolen motor vehicle, in connection with the December 8 robbery. During a scheduled court appearance on September 18, 2012, Officer Taylor arrested Mr. Abubakar in the cells. According to the officer, Mr. Abubakar asked him if he was in charge of the case and he said yes. Mr. Abubakar said to him, “Sir, what can you do for me if I give you the other guy for the bank robbery?”

[17] Officer Taylor testified that he told him that he was not obligated to say anything and warned him that anything he said may be used in evidence against him. He told him that if any person in authority had said anything to make him believe that he had anything to say, he was not to let their words or actions influence him in making a statement. Mr. Abubakar acknowledged that he understood and, according to the officer, the conversation continued as follows:

Taylor: I cannot make any promises. If you have information that helps me find the other guy, I want to hear it.

Abubakar: I want promises that I will get out.

Taylor: It doesn’t work that way, sorry.

Abubakar: What if I can prove that I am innocent? I know who robbed that bank. I gave them the car that they drove. I know it was stupid, but I did not rob any bank.

Taylor: If you are innocent, and I don’t think you are, I would listen to what you have to say.

Abubakar: The guy’s name is Tran Minh. He was in Maplehurst with me in 2010.

Taylor: How do you know that he did it?

Abubakar: Trust me, he told me he was doing it. It was not the only one he did.

Taylor: What do you mean?

Abubakar: He has done more than one. He borrowed my green Maxima for one. He shot a gun off on that one but it was a fake gun. It shot blanks.

Taylor: When was that one?

Abubakar: Two months before this one. Same road. On Steeles.

Taylor: How do you know this?

Abubakar: He drove my car and he told me. When I got the car back, it was full of red dye on the leather seats.

Taylor: What does he look like?

Abubakar: Asian, five five, sort of fat.

Taylor: How old?

Abubakar: Older than me.

Taylor: Where did he live?

Abubakar: Bathurst and Bloor. I can show you.

Taylor: What street?

Abubakar: Not sure, but I can show you.

Taylor: Why does he rob banks?

Abubakar: He needs money to deal in heroin and he needs start-up money.

Taylor: What other robberies?

Abubakar: One in Pickering and another in Woodbridge.

Taylor: How do you know this?

Abubakar: He bragged about them.

[18] Officer Taylor testified that when he went into the cells, he was not expecting Mr. Abubakar to say anything. Mr. Abubakar approached him and blurted out the name of the robber. He denied that he made any threats or promises, or told him that it was in his best interests to cooperate with police.

[19] He testified that during their conversation, he was alone with the man in an interview room near the cells and he did not have any recording equipment. He remembered writing the name provided by Mr. Abubakar on a file folder and he made his notes of their conversation some time before the end of his shift that day. He acknowledged that his notes were not verbatim.

[20] Officer Taylor checked police records and obtained a photograph of the respondent, which confirmed that they were housed on the same prison range between August 30 and September 13, 2010.

[21] On September 21, 2012, Officers Kelly and Taylor went to the Toronto East Detention Centre and met with Mr. Abubakar. They showed him a photograph of the respondent and asked him if this was the person he talked about and he agreed. They obtained his consent for a judge’s order to go on an investigative trip to point out where the respondent lived and to give a videotaped statement. They testified that they made no promises or threats, or offers to assist Mr. Abubakar with his charges.

[22] On September 24, 2012, Mr. Abubakar participated in a drive-around with Officers Kelly and Taylor. They testified that he directed them to 108 Nassau, where the respondent lived, to an internet café that the respondent frequented and to the area of Summer Drive and Cleta Drive where the respondent’s girlfriend lived. The officers said that they made no threats or promises in exchange for the information.

[23] Afterwards, Mr. Abubakar gave a videotaped statement to Officers Kelly and Taylor. The statement was not given under oath because a commissioner of oaths was not available at the time. The officers testified that they made no threats or promises, or gave him information about the respondent.

[24] At the outset of the statement, Officer Kelly informs Mr. Abubakar that it is a criminal offence to obstruct justice, or to commit public mischief by making a false statement to police. He warns Mr. Abubakar that if he recants, or claims his statement to be false, it will be used at trial and he could be prosecuted for fabricating evidence.

[25] The officer warns him that if any person has, by words or acts, attempted to persuade Mr. Abubakar to provide a statement, he is to give the statement only if he freely chooses to do so. Mr. Abubakar acknowledges that he understands. Officer Kelly asks if he chooses to give a statement and Mr. Abubakar replies, “Of course.”

[26] Officer Kelly states that he is going to give “a little overview” of what brought them to the room. He states that when Officer Taylor attended the courthouse about a further charge, Mr. Abubakar told him that he had information that he wanted to give the police about a bank robbery and he identified the man whom he believed was responsible for a number of bank robberies.

[27] Officer Kelly shows Mr. Abubakar a photograph of the respondent and asks if this is the man whom he had identified. Mr. Abubakar replies, “Unmistakably.”

[28] Officer Kelly states that they met with him a few days later and explained that they had a judge’s order to remove him from jail so that he could take them to certain addresses and explain a few things to them. Mr. Abubakar agrees.

[29] Officer Kelly shows Mr. Abubakar a photograph of a man who robbed a TD Canada Trust bank at 1794 Liverpool Road in Pickering on February 24, 2010. Mr. Abubakar identifies the man as “Tran” and says that the respondent told him that he committed that robbery.

[30] Officer Kelly shows him a surveillance image from a robbery at a CIBC bank at 8535 Highway 27 in Vaughan on May 8, 2010 and asks if he recognizes the man. He says, “Yes, cannot be mistaken.… It’s Tran Minh.… [H]e’s very good at changing up his looks with the subtleties.”

[31] Officer Kelly asks what Mr. Abubakar can tell the police about the Scotiabank robbery on October 7, 2011. His answer is: “This is the one that he told me about. Um, my car was actually used inside the committing of that offence…. And try and ask me to borrow my car and I had no idea that he was gonna commit a bank robbery with it…. And yeah, he told me about that fully.” He identifies the respondent on a surveillance image from the robbery and states that he had seen the respondent with the same North Face jacket and the same gloves. He says that the respondent told him that he wore a mask and fired his gun towards the ceiling, but it was a starter pistol.

[32] He adds that the respondent offered to pay him $200 to borrow his 1997 green Nissan Maxima for two days. About a week later, he telephoned Mr. Abubakar to say that his car was parked on Victoria Park Avenue. When he picked up the car, there were red stains on the leather. The respondent told him that he had used the car in a bank robbery and he gave Mr. Abubakar new licence plates to put on the car. The respondent tried to remove the dye from the money without success. Mr. Abubakar told him to use acetone and it worked.

[33] Mr. Abubakar says that he stopped driving the car because he did not want to become a suspect and after a while, he started driving it again. He says that he was arrested for driving the Nissan without insurance and his car was impounded.

[34] Officer Kelly shows him a surveillance image from the December 8 robbery and Mr. Abubakar states:

Yeah, that’s clearly him hopping over the counter.… Tran Minh.

Yeah he told me exactly how, how this whole robbery went because he … was basically asking me to participate with him … [i]n further robberies, which I declined.

[35] In the statement, Officer Kelly states that he and Officer Taylor picked up Mr. Abubakar at the Toronto East Detention Centre and they drove to 108 Nassau Street where Mr. Abubakar told them that the respondent lived and where he dropped off the Honda Civic that the respondent used in the December 8 robbery. Mr. Abubakar says that the respondent had been looking for a cheap car and he connected the respondent with someone who stole cars.

[36] Officer Kelly goes on to say that Mr. Abubakar pointed out an internet café that the respondent frequented and Summer Drive and Cleta Drive where the respondent’s girlfriend lived. Mr. Abubakar says that he had been at that address before to meet up with the respondent before they picked up his car on Victoria Park.

[37] Officer Kelly asks Mr. Abubakar if there is anything that he wants to change in his statement and he says:

Abubakar: No, my answers are completely solid.

Kelly: Okay.

Abubakar: Speaking to the best of my memory and my memory is very good.

[38] In his testimony on the voir dire, Officer Kelly conceded that an experienced criminal had given the police exactly what they needed to complete the puzzle without being asked to do so and without promises or inducements. He conceded that Mr. Abubakar was eager and enthusiastic and used words such as, “cannot be mistaken,” “that’s clearly him,” “unmistakably,” and “my answers are solid.” Officer Kelly stated, “You don’t often hear that from a witness. They just say, ‘This is what happened.’ I can definitely say, it’s a first, for sure.”

[39] The respondent was arrested and charged for his role as the sole perpetrator of the October 7 robbery and one of the two robbers in the December 8 robbery. A preliminary inquiry was held in July 2013, which resulted in the respondent being committed for trial. Mr. Abubakar testified at the preliminary inquiry. Prior to that proceeding, he was found guilty of the December 8 robbery and sentenced to a lengthy term of imprisonment.

The Evidence of Taiseer Abubakar

[40] At the outset of his testimony on the voir dire, Mr. Abubakar was asked by the court constable, “Holy Book or affirm?” He replied, “Neither.” The constable asked, “Neither?” and he said, “Affirming.”

[41] Mr. Abubakar testified that on September 18, 2012, he did not use the words attributed to him by Officer Taylor. He maintained that he would never call a police officer “sir.” He denied that he asked the officer for promises to get him out of jail.

[42] His evidence was that Officer Taylor threatened to charge members of his family with criminal offences arising out of search warrants the police had executed, unless he went along with what the officer said.

[43] He testified that he told the truth at the preliminary inquiry when he said that Officer Taylor promised to help him if he gave the police the other robber.

[44] When it was suggested to Mr. Abubakar on the voir dire that he knew that the respondent had not committed any of the robberies when he offered up his name to the police, he answered, “Yes.”

[45] He did not remember meeting with two police officers in the cells on September 21, 2012, and he had no recollection of driving around with them on September 24, 2012, or going to Nassau Street, or the internet café, or the area of Summer Drive and Cleta Drive. His evidence was that he was not saying that it did not happen. He did not remember it.

[46] His evidence at the preliminary inquiry and on the voir dire was that he had never been to 108 Nassau Street and it was the police who told him to say that this was where the respondent lived.

[47] He did not remember being given any warnings before he made his statement on September 24 that he could be charged with obstructing justice for making a false statement. He did not dispute what was said about that on the videotape.

[48] He was reminded of his testimony at the preliminary inquiry where he said that the police read something to him about being charged with fabricating evidence, but they told him that they were just reading it to him because they had to and he should ignore it. At the voir dire, he did not dispute that this was his evidence at the preliminary inquiry, but he did not remember it.

[49] He agreed that he told the preliminary inquiry judge that the police told him what to say in his September 24 statement. During the voir dire, he did not dispute that this was his evidence, but he did not remember it.

[50] He did not know where the information in the September 24 statement came from. He was not sure if he made it up. He said that it was possible that others told him what to say, but he could not remember.

[51] He denied that the respondent told him about the October 7 robbery. He denied that the respondent offered him money to use his car for two days. He denied that he had a conversation with the respondent about acetone, or that he stopped driving the Nissan because he did not want to become a suspect.

[52] He also denied that he had a discussion with the respondent about the December 8 robbery. He did not remember brokering stolen cars with the respondent, or receiving money from him for a stolen car. He testified that he did not know where the respondent lived and he did not know anyone associated with the respondent who lived in the area of Summer Drive and Cleta Drive.

The Position of the Parties

[53] The Crown’s position is that Mr. Abubakar was effectively cross-examined by counsel for the respondent and, even if the ability to cross-examine him on the voir dire was limited because he did not remember what he said to the police on September 24, there are corroborating factors that support the reliability of the statement.

[54] With respect to the respondent’s ability to cross-examine the witness, the Crown asserts that Mr. Abubakar was responsive in two material areas: voluntariness and the source of information contained in the statement.

[55] First, he adopted his testimony from the preliminary inquiry about being threatened by police and about being told what to say in his statement.

[56] Second, he testified that he did not remember going to Nassau Street or Summer Drive and Cleta Drive with the police. He stated that it was the police who told him what to say in his statement about the significance of those addresses.

[57] These details, the Crown contends, demonstrate that Mr. Abubakar’s testimony on the voir dire amounted to more than a claim to have no memory whatsoever.

[58] The Crown submits that there are significant corroborating details about what occurred in the October 7 robbery that are consistent with Mr. Abubakar’s statement. He said that the firearm was a starter pistol. The police found a blank round where the gun was fired. He said that the respondent pointed the firearm towards the ceiling. Video surveillance shows that the suspect’s firearm was pointed towards the ceiling and fired. He said that when he picked up his car after the respondent borrowed it, it had red stains on the leather. Tellers put red dye packs into the suspect’s bag. He said that the respondent borrowed his green Nissan Maxima. It was agreed that Mr. Abubakar owned a green Maxima and witnesses said that the suspect fled the bank in a green Nissan Maxima or Altima.

[59] The Crown submits that these facts could only have come from someone who spoke to the robber, or from someone who spoke to a person at the robbery. It is asserted that Mr. Abubakar was not at the October 7 robbery because the robber was described as much shorter than Mr. Abubakar.

[60] The Crown contends that the September 24 statement was videotaped and that Mr. Abubakar’s demeanour was forthcoming and confident, which bolsters the reliability of the statement.

[61] The respondent’s position is that because the encounters with the police on September 18, September 21 and during the ride-along on September 24 were not properly or adequately recorded to permit a full cross-examination, it is not possible for the court to properly assess threshold reliability.

[62] It is submitted that during his September 7 statement, Mr. Abubakar’s demeanour is guarded and evasive. Confronted by the evidence against him, he appears to be looking for a way out. In marked contrast to his initial statement, in his September 24 statement, Mr. Abubakar’s demeanour is forthcoming, confident, eager and enthusiastic. He is very anxious to talk to the police.

[63] The respondent argues that in the absence of an adequate recording of Mr. Abubakar’s three meetings with the police in between the two statements, the court is left with a credibility contest about the interview process, over which the police had complete control.

[64] The position of the respondent is that in the overview provided by Officer Kelly on the September 24 videotape, the officer omits to clarify whether Mr. Abubakar wanted to clear his name by naming the second robber, whether he asked for consideration for bail and/or other charges, and whether these requests were rejected by Officer Taylor.

[65] It is also the position of the respondent that given the change in Mr. Abubakar’s demeanour from evasive on September 7 to eager on September 24, it was incumbent on the police to have Mr. Abubakar “sign off” on Officer Taylor’s notes. Thus, in the absence of an adequate recording of the events surrounding the intervening meetings with police, the respondent is left without tools to properly address the issue of voluntariness.

[66] It is asserted that the issue of threshold reliability cannot be met because of the witness’s non-responsive and manipulative testimony on the voir dire.

[67] As an example, the respondent states that Mr. Abubakar blatantly lied under oath about his criminal record. He denied that he was found guilty of any of 13 offences of break and enter and theft of stolen property. His criminal record, however, indicates that in 2010, he was found guilty of seven charges of breaking and entering and 6 charges of possession of property obtained by crime.

Analysis

[68] In R. v. Woodcock, 2010 ONSC 1285, [2010] O.J. No. 1280, the Crown applied for an order permitting videotaped sworn statements of a witness to be used for the truth of their content. The Crown argued that many aspects of those statements had been confirmed by other evidence and that defence counsel would have an adequate basis upon which to cross-examine him at trial.

[69] Defence counsel argued that the prior statements were rife with perjury and falsehoods, that the witness had a strong motive to falsely implicate others, and that because of his conduct on the witness stand, there was no meaningful opportunity for cross-examination. In dismissing the Crown’s application, Pardu J., as she then was, extracted (at para. 3) the following principles from Khelawon:

(1) Hearsay evidence is presumptively inadmissible, but may be admitted where reliability and necessity are established on a voir dire.

(2) As noted in p. [49] of Khelawon,

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. 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. 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.

(3) The trial judge only decides whether the evidence is admissible. Where the trial takes place with a jury, the question of ultimate reliability must be left to the jury.

(4) The context giving rise to the need for the evidence in its hearsay form may affect the degree of reliability required to justify its admission. (p. [78] Khelawon)

(5) Where a witness has made conflicting statements under oath, the issue is whether there are adequate substitutes for contemporaneous cross-examination which would safely allow the jury to assess the evidence. (p. [78] Khelawon) Where the prior statement is made under oath following a warning as to the significance of the oath or affirmation, the prior statement is videotaped so that the jury can observe the demeanour of the witness, and there is a full opportunity to examine the witness regarding the statement, the jury may have the tools necessary to assess the value of the prior statement.

(6) As noted at p. [92],

When 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 and the trial judge is exceeding his or her role by inquiring into the likely truth of the statement. When reliability is dependent on the inherent trustworthiness of the statement, the trial judge must inquire into those factors tending to show that the statement is true or not.

[70] The K.G.B. indicia of reliability raise a number of concerns about the September 24 statement. First, although the statement was videotaped, it was not made under oath. Second, although Mr. Abubakar was warned of the consequences of giving false testimony, it is very doubtful that he values giving truthful evidence. Third, the contentious issue is whether he can be adequately cross-examined.

[71] In R. v. Youvarajah, 2013 SCC 41, 300 C.C.C. (3d) 1, at para. 50, the majority held:

The jurisprudence emphasizes the presence of a “full opportunity to cross-examine the witness [at trial] respecting the statement”: K.G.B., at p. 796 (emphasis added [in Youvarajah]). In Devine, Charron J. held:

It 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). [para. 26]

[72] A witness’s inability to recall a prior inconsistent statement impedes cross-examination and is a relevant but not dispositive factor when evaluating threshold reliability: see R. v. U. (F.J.), 1995 74 (SCC), [1995] 3 S.C.R. 764, at para. 46; and R. v. Michaud, 2004 7714 (Ont. C.A.), at para. 9.

[73] During the voir dire, counsel for the respondent reminded Mr. Abubakar that in his September 24 statement, he told the police that when he picked up his green Nissan Maxima after the October 7 robbery, there were red stains on the leather and that the respondent told him that he had robbed a bank. Mr. Abubakar had no memory of saying that in his statement.

[74] He also claimed not to remember making the September 24 statement, going on the ride-along with the police earlier that day, or whether he had ever spoken with the respondent about robberies or stolen cars.

[75] Given his non-responsive, contradictory, inconsistent and, at times, unconvincingly vague testimony, it is difficult to accept anything that Mr. Abubakar says. I am of the opinion that counsel would be unable to conduct a meaningful cross-examination of the witness. This K.G.B. factor, therefore, cannot be used to support the reliability of the statement.

[76] Although a full opportunity to cross-examine is not a mandatory prerequisite to allowing a K.G.B. application, when this condition is absent, it is necessary to determine whether there are other indicia of reliability that can compensate for the weaknesses in the K.G.B. criteria.

[77] The Crown maintains that there is independent evidence to corroborate parts of the September 24 statement. Mr. Abubakar and the respondent were in the same correctional facility at the same time. During the October 7 robbery, the robber fired a gun at the ceiling. The gun fired a blank shot. The October 7 bank robber used a green Nissan as the getaway car and Mr. Abubakar owned a green Nissan Maxima.

[78] The respondent’s assertion is that there is no confirmation that the respondent was the person who provided this information to Mr. Abubakar and that, on the evidence during the voir dire, the court cannot determine whether his September 24 statement was voluntary. He claimed that the police threatened him and supplied him with the information in his statement. The police deny such conduct.

[79] Counsel for the respondent declined to argue that the court should rely on Mr. Abubakar’s testimony to decide the issue of voluntariness because it would require asking the court to believe Mr. Abubakar on this issue but no other and the witness appeared to have little respect for the truth. I would agree.

[80] The rest of the voir dire record on voluntariness is scant. In his September 7 statement, Mr. Abubakar was confronted with evidence of his DNA, surveillance images and an identification witness and yet, he maintained that he did not participate in the December 8 robbery. The police could not have believed that he was telling the truth. Thus, it was incumbent on them going forward to take steps to record what he said or at least, to repeat on videotape the statements he made on September 18, in the event that he recanted.

[81] Officer Kelly testified that Mr. Abubakar was an experienced criminal who appeared to offer up incredibly helpful information sua sponte on September 18. Yet the police did not ask him to confirm the substance of Officer Taylor’s notes of their conversation on September 18, or to initial the photograph of the respondent he identified on September 21, or to give a more fulsome account of their interactions in his own words on videotape on September 24.

[82] In the absence of an adequate record of meetings with police before the September 24 statement, there is no opportunity to observe his change in demeanour, or its cause, or his own choice of words in his interactions with the police prior to that date.

[83] Based on the testimony during the voir dire, I am unable to conclude that the Crown has demonstrated on a balance of probabilities that Mr. Abubakar’s September 24 statement was voluntary: see K.G.B., at p. 802; and R. v. U. (F.J.), 1995 74 (SCC), [1995] 3 S.C.R. 764, at para. 49. I am aware that the Ontario Court of Appeal has held that, in light of Khelawon, K.G.B. should not be read to impose a per se rule that witness statements must be proven voluntary to be admissible: R. v. Hamilton, 2011 ONCA 399, 271 C.C.C. (3d) 208, leave to appeal to S.C.C. refused, R. v. Reid, [2012] S.C.C.A. No. 46, at paras. 140-57.

[84] Apart from the issue of voluntariness, the September 24 statement suffers from frailties in addition to those already noted in the discussion of the K.G.B. factors.

[85] The statement was not made contemporaneously with the events in question, but rather nine months after the more recent robbery.

[86] The witness had a motive to lie. Given the solid evidence put before him by the police, Mr. Abubakar would have had a strong incentive to shift responsibility and minimize his role in the crime in order to obtain a favourable outcome.

[87] In Youvarajah, at para. 62, the majority held:

It has long been recognized that the evidence of one accomplice against another may be motivated by self-interest and that it is dangerous to rely on such evidence absent other evidence which tends to confirm it.

[88] Moreover, this inquiry cannot ignore the contradictory evidence of Mr. Abubakar as to whether the September 24 statement contains his own words. During the voir dire, Mr. Abubakar was reminded that in his statement, he said that he stopped driving the Nissan because he did not want to “get pulled over” and become a suspect. “After a while” he started driving it again and “it ended up in the impound.”

[89] When he was asked during cross-examination what he meant when he used the words “after a while,” Mr. Abubakar said, “I wouldn’t have said ‘a while’ if it was a day or two.… My definition of ‘a while’ would probably be about between two weeks and one month.”

[90] Counsel for the respondent proceeded to read to Mr. Abubakar from a police occurrence report, which stated that two days after the October 7 robbery, the police stopped him while he was driving a green Nissan Maxima. Mr. Abubakar was the car’s owner but it had stolen plates and no insurance. The police arrested him and impounded the car.

[91] Counsel suggested to Mr. Abubakar that this appeared to be the car that was used in the October 7 robbery and that he was in the car on October 9, 2011, when he was arrested for possession of a stolen plate.

Q. So you didn’t drive the car for two or three weeks to a month and here you are in the car two days after the robbery.

A. I said I didn’t drive the car.

Q. Oh.

A. I was not driving that car, and even as my previous testimony, I said my friend was driving the car and it got impounded.

[92] In many respects, Mr. Abubakar resembles the unsavoury witness in Woodcock, whose statement was excluded despite the existence of corroborating evidence. While there are some factors that support threshold reliability, in my view, these indicia cannot adequately compensate for the lack of a full opportunity to cross-examine the witness and the other weaknesses identified above.

[93] Accordingly, the application to adduce the statement for the truth of its contents is dismissed because the Crown has not established on a balance of probabilities that the September 24 statement meets the requirement of reliability.

DUNNET J.

Released: February 20, 2014

COURT FILE NO.: 13-30000628-0000

DATE: 20140220

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN
(Applicant)

– and –

MINH HOANG TRAN
(Respondent)

RULING ON VOIR DIRE

DUNNET J.

Released: February 20, 2014