Her Majesty the Queen v. Jirah Warner, 2014 ONSC 4537

COURT FILE NO.: CR14300002670000

DATE: 20140731

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JIRAH WARNER

Defendant(Respondent)

Joseph Hanna, for the Crown (Applicant)

Royland M. Mariah, for the Defendant (Respondent)

HEARD: May 12, 13, and 15, 2014

MOLLOY J.:

REASONS FOR DECISION

(Crown Application to Admit Prior Statements as Evidence at Trial)

A. INTRODUCTION and OVERVIEW

[1] Jirah Warner is charged with four counts of robbery and one count of attempted robbery, all of which are alleged to have been committed between October 2010 and January 2011. These robberies are alleged to have been the work of a group of young men, which included Mr. Warner. Notably, Mr. Warner is alleged to be the driver of a red Charger in which the robbers drove to and from the scenes of these crimes, and also to have actively participated in some of them. The offences alleged are:

(i) October 4, 2010 – robbery of a Bank of Montreal in Markham;

(ii) October 15, 2010 – attempted robbery of a Bank of Montreal in Bradford (the bank was closed);

(iii) October 15, 2010 – robbery of a Bank of Montreal on Leslie St. in Toronto;

(iv) December 31, 2010 – home invasion and robbery in Toronto;

(v) January 12, 2011 – robbery of a convenience store in Toronto

[2] Mr. Warner was initially charged with these offences along with a co-accused, Devaine Nelson, who was also alleged to be one of the group of robbers. Both men elected to be tried by judge alone and their counsel agreed that the trial would proceed on a blended basis, with the evidence tendered on the trial proper also being applicable to the various evidentiary applications. Subsequently, Mr. Nelson resolved the charges against him, and the trial continued against Mr. Warner.

[3] The Crown applies to have out-of-court statements made by two witnesses admitted at trial for their truth. Although the trial itself has not yet been completed, I have heard all of the evidence and argument needed for these two applications.

[4] One of those witnesses, Ilce Ivanovski, is an independent third party who made some observations of a vehicle parked outside his house on December 31, 2010, and of four men who got into that car and drove away. At trial, he said he had no memory of many of the details he had provided to the police that same night and in his evidence at the preliminary hearing about one year later. He also testified that his memory was not refreshed by reviewing his prior statements or a transcript of his preliminary hearing testimony. The Crown seeks to have Mr. Ivanovski’s evidence at the preliminary hearing admitted for its truth.

[5] The second witness was under the age of 18 at the time he was arrested and charged with being a participant with the group in some of these robberies. I will refer to him in these Reasons as “J.N.” or “Mr. N.” At the time of his arrest and shortly afterwards at the police station, J.N. gave detailed information to the police implicating Mr. Warner and others, as well as himself. At the preliminary hearing and again at the trial before me, Mr. N recanted and testified that the police officers assaulted him several times in the police car and at the station, both prior to and in the course of his formal statement. At trial, he said he lied to the police about Mr. Warner’s involvement in the subject offences because he thought Mr. Warner had snitched on him to the police. The Crown seeks to have the video of Mr. N’s statement to the police on January 13, 2011 admitted for its truth at trial.

[6] For the reasons that follow, I find the out-of-court statements of both witnesses admissible as they meet the requisite tests of necessity and reliability. The necessity test is met for Mr. Ivanovski’s statement because he can no longer recall the details of his initial observations. There is no real concern about his credibility. The circumstances in which he gave his statement provide substantial support for its reliability. The necessity requirement is met for Mr. N’s evidence because he has recanted his earlier statement. Credibility is clearly an issue with respect to the ultimate evaluation of his evidence. However, I am satisfied that there is an adequate basis upon which to assess the truthfulness and accuracy of the statement given the circumstances in which the statement was made, the right of cross-examination at trial, and the significant corroborative evidence available.

B. GOVERNING PRINCIPLES

[7] The starting point for any analysis of this issue is the presumption against the admissibility of hearsay evidence. Unless subject to a recognized exception to the hearsay rule, out-of-court statements made by a witness are presumptively inadmissible but may be admitted if certain criteria are met. Because the presumption is against admissibility, the Crown in this case bears the onus of establishing that the test is met.[^1]

[8] Over the past three decades, the Supreme Court of Canada has developed and refined a “principled approach” to the admissibility of hearsay evidence based on a consideration of necessity and reliability.[^2] Essentially, the focus is on whether there are sufficient substitutes for the protection of contemporaneous cross-examination to permit the admission of such evidence.

[9] Until the Supreme Court of Canada’s seminal 1993 decision in R. v. B. (K.G.),[^3] a witness who had given a statement to police and then recanted at trial could be cross-examined on any inconsistency between the two statements. However, his previous statement could only be used to assess credibility; it could not be treated as evidence of what actually happened. In that case, three witnesses, all youths, had provided statements to the police indicating that the accused had confessed to them his involvement in a murder, but all three witnesses recanted at trial. The trial judge did not believe their recantations and was satisfied that they each told the police the truth as to what the accused had told them. However, the trial judge was bound by prior case authority to treat this as an issue going only to the credibility of those three witnesses. The only other evidence implicating the accused was identification evidence too weak to be determinative. Accordingly, he acquitted the accused, a decision that was upheld by the Court of Appeal for the same reason given by the trial judge. The Supreme Court of Canada ordered a new trial, holding that the time had come to apply a principled approach to hearsay and to permit such statements to be considered for their truth provided the requirements of necessity and reliability were met.

[10] On the issue of reliability, Lamer J., writing for the majority, held, at pp. 795-96:

Therefore, the 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 as 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.

[11] The impact of this decision has been such that this manner of taking statements from witnesses and suspects (i.e. under oath or solemn affirmation, videotaped, and with warnings as to significance and sanctions for giving false statements) has become standard police practice and the statements themselves are commonly referred to as “KGB statements.”

[12] The Supreme Court recognized the importance of contemporaneous cross-examination as a safeguard to ensure reliability, but held that subsequent cross-examination of the witness is often an adequate substitute, stating at p. 795:

Again, we must remember that the question is not whether it would have been preferable to have had the benefit of contemporaneous cross-examination, but whether the absence of such cross-examination is a sufficient reason to keep the statement from the jury as substantive evidence. Given the other guarantees of trustworthiness, I do not think that it should be allowed to be a barrier to substantive admissibility. Of course, it will be an important consideration for the trier of fact in deciding what weight to attach to the prior inconsistent statement, and it is likely that opposing counsel will stress the absence of such cross-examination to the trier of fact.

[13] Further, the Supreme Court also held that the availability of the witness at trial did not necessarily mean that the necessity criterion could not been met. When the witness has recanted his prior statement, this testimony is no longer available, even though the witness is present. On this point, Lamer J. noted, at p. 799:

In the case of prior inconsistent statements, it is patent that we cannot expect to get evidence of the same value from the recanting witness or other sources: as counsel for the appellant claimed, the recanting witness holds the prior statement, and thus the relevant evidence, “hostage.” The different “value” of the evidence is found in the fact that something has radically changed between the time when the statement was made and the trial and, assuming that there is a sufficient degree of reliability established under the first criterion, the trier of fact should be allowed to weigh both statements in light of the witness’s explanation of the change. [Emphasis in original.]

[14] In 2006, the Supreme Court in Khelawon[^4] affirmed much of its prior case law dealing with the principled approach to hearsay, but with significant modifications as to how reliability could be established at this admissibility stage. Importantly, corroborating evidence would no longer be limited to a consideration of the ultimate reliability of the prior statement at trial, but also now could be used to determine threshold credibility at the admissibility stage.

[15] In Khelawon, the Court noted that the reliability of a hearsay statement can be established in one of two ways: (1) by showing that there is no real concern about the statement’s truth or accuracy because of the circumstances in which it came about; and (2) by showing that the statement’s truth and accuracy can be sufficiently tested by some means other than cross-examination contemporaneous with the making of the statement.[^5]

[16] The latter requirement is most commonly satisfied by an opportunity to cross-examine the witness at trial, rather than at the time the statement was made (as was decided in the B. (K.G.) case). As the Court noted in Khelawon, witnesses routinely testify in court under oath with the only test of the truth and accuracy of their evidence being the scrutiny of contemporaneous cross-examination. While this may be regarded as the optimal method of testing that evidence, it is by no means the only way. The Court held, at para. 63:

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. Recall that the optimal way of testing evidence adopted by our adversarial system is to have the declarant state the evidence in court, under oath, and under the scrutiny of contemporaneous cross-examination. This preferred method is not just a vestige of past traditions. It remains a tried and true method, particularly when credibility issues must be resolved. It is one thing for a person to make a damaging statement about another in a context where it may not really matter. It is quite another for that person to repeat the statement in the course of formal proceedings where he or she must commit to its truth and accuracy, be observed and heard, and be called upon to explain or defend it. The latter situation, in addition to providing an accurate record of what was actually said by the witness, gives us a much higher degree of comfort in the statement’s trustworthiness. However, in some cases it is not possible to put the evidence to the optimal test, but the circumstances are such that the trier of fact will nonetheless be able to sufficiently test its truth and accuracy. Again, common sense tells us that we should not lose the benefit of the evidence when there are adequate substitutes for testing the evidence. [Emphasis added.]

[17] The right of cross-examination at trial is not the only means by which the reliability requirement can be met. Overruling its previous decision in R. v. Starr, the Court in Khelawon held that it is also relevant at this stage to consider the existence of corroborative or conflicting external evidence. Rather than classifying certain factors as being relevant to either threshold or ultimate reliability, the Court decided to adopt a functional approach, looking at the factors in context, and focusing on the dangers raised by the hearsay evidence and whether they could be sufficiently addressed by other means. Corroborating evidence can be an important factor enhancing reliability and can be assessed by the trial court in an objective and critical way.[^6]

[18] Although the categories of factors to be taken into account in determining threshold reliability were expanded in Khelawon, the Court was careful to emphasize that the consideration of threshold and ultimate reliability must not be conflated. The issue before the trial judge at this stage is not whether the tendered statement is true, or even likely true. The question is whether there are circumstances sufficient to ensure that its reliability can be adequately assessed by the ultimate trier of fact, whether that be the jury or the trial judge at a later stage. On this issue, the Court adopted the following portion of its prior ruling in Hawkins:[^7]

The criterion of reliability is concerned with threshold reliability, not ultimate reliability. The function of the trial judge is limited to determining whether the particular hearsay statement exhibits sufficient indicia of reliability so as to afford the trier of fact a satisfactory basis for evaluating the truth of the statement. More specifically, the judge must identify the specific hearsay dangers raised by the statement, and then determine whether the facts surrounding the utterance of the statement offer sufficient circumstantial guarantees of trustworthiness to compensate for those dangers. The ultimate reliability of the statement, and the weight to be attached to it, remain determinations for the trier of fact. [Emphasis in original.]

[19] Finally, the decision whether to admit a hearsay statement also involves an exercise of discretion. Even when the evidence is otherwise unavailable and there are circumstantial guarantees of trustworthiness, the trial judge may refuse to admit the evidence if the prejudicial impact of its admission would outweigh its probative value.[^8]

C. EVIDENCE OF ILCE IVANOVSKI

(i) The Evidence

[20] In the early morning hours of December 31, 2010, a group of young men armed with shotguns and baseball bats committed a home invasion and robbery at 23 Gladys Road in Scarborough. The home owner, Kevin Breen, was present, along with his girlfriend and a tenant. The invaders were apparently looking for drugs and money. Mr. Breen testified at trial that he saw at least four, and possibly five, men, all of whom had their faces covered. One man was white and the rest were black. He saw two guns, both of which were shotguns. One was a 12 gauge with an 18.5” barrel and tape on the grip. The other one, also a 12 gauge, had a black barrel, a wooden pump stock, and a pistol grip. According to Mr. Breen, the robbers took $1200 in cash; his wallet; his cellphone; an X-Box; his girlfriend’s purse: and two or three laptops belonging to the tenant. The robbers then ran out of the house and down the street. Mr. Breen immediately called the police and estimated that they arrived within five to ten minutes.

[21] Ilce Ivanovski lived at 22 Gladys Road, a two-minute walk from the house where the home invasion occurred. Mr. Ivanovski was at home alone that night, but keeping a watch out his front window as he was waiting for his girlfriend to get home from work. He testified that he noticed a car parked on the street in front of his house. He found that odd as usually there are no cars parked there. At one point when Mr. Ivanovski was looking out, he saw four men run down the street, jump into the car, and drive off. At trial, he testified that the only detail he could remember about the car was that it had tinted windows. He acknowledged approaching police officers on the street that night and reporting what he had seen while the events were fresh in his mind. He said he told the police the truth. However, upon reviewing his statement to the police that night, and the notes of another officer who interviewed him on November 28, 2011, he claimed to have no present recollection of other details he had provided at the time and said that neither those notes, nor his testimony at the preliminary hearing on February 3, 2012, refreshed his memory.

[22] At the preliminary hearing and in his initial statement to the police at the scene, Mr. Ivanovski had provided the following additional details:

• at least one of the four men was black;
• the car was a red four-door Charger;
• he could see only the passenger side of the Charger and on that side the rear tire had a chrome or silver rim, but the front tire was missing its rim and looked entirely black;
• he followed the vehicle to see if he could get a plate number, but he could not; and
• he spoke to the police within 15 minutes of his observations.

[23] In his statement to the police, he also reported that the men were carrying bats.

[24] At the preliminary hearing, Mr. Ivanovski’s testimony was the same as his testimony at trial, with the addition of the details in the preceding paragraph. He also testified that there was an operating street lamp beside the car, which provided illumination but also partially obstructed his view. The car was about 50 feet away from him as he was making these observations.

[25] Mr. Warner was represented by counsel (not Mr. Mariah) at the preliminary hearing. His lawyer elected not to cross-examine Mr. Ivanovski.

(ii) Necessity

[26] Mr. Ivanovski was cross-examined at the trial before me as to whether he was afraid to testify. He denied being afraid, but also initially denied having expressed concerns to officers in the past about testifying. On further cross-examination, however, he acknowledged that he may have told the officer at the scene that he wanted to remain anonymous and subsequently told another officer that he was concerned for his safety. Notwithstanding this, he testified that nobody had threatened him or offered him anything to forget these details. He maintained that a lot had gone on in his life over the past few years, much of it traumatic. He insisted that he honestly could not remember these details anymore.

[27] I believe Mr. Ivanovski was testifying honestly. He acknowledged the things he could remember, but simply could not recall anything else, despite being reminded of what he told the police at the time. He did not seek to distance himself from his prior description of the vehicle and confirmed that he had given it to the police freely, in a truthful manner, and at a time when the details were fresh in his mind. The simple truth is that with the passage of time he can no longer bring those particular details to mind.

[28] In that sense, this evidence is lost. Whether it be because of a witness who has died, or disappeared, deliberately recanted, or simply lost his memory, the evidence is just as surely no longer available directly from the witness himself. I therefore find that the necessity requirement is established.

(iii) Reliability

[29] Mr. Ivanovski is an independent witness with no connection to this proceeding or anybody involved in it. He had a reason to be looking out his window constantly and a reason to notice the car that was there. The behaviour of the men getting into the car was sufficiently suspicious that he attempted to get a license plate and then went to the police officers who attended in response to the 911 call and reported what he had seen. He had no motive to fabricate. He was simply acting out of a sense of civic duty. I accept his evidence that he gave a truthful statement to the police. These are all circumstances that enhance reliability.

[30] Mr. Mariah, for the defence, argues that the reliability of Mr. Ivanovski’s testimony at the preliminary hearing is undermined by the fact that he used the notes of the officer who took his statement at the scene to refresh his memory, even though he did not review and sign those notes at the time. I agree that it would have been preferable if Mr. Ivanovski had signed the notes at the time. However, Mr. Ivanovski has demonstrated at trial that he understands the difference between “refreshing” his memory as opposed to simply accepting that if it is in the officer’s notes it must be true, even if he has no memory of it. When Mr. Ivanovski testified at the preliminary hearing, he had no difficulty recalling the particulars of what he had seen on the night in question, with the assistance of the notes to refresh his memory. This is a factor to be taken into account in assessing ultimate reliability, but is by no means fatal to the Crown’s onus to establish reliability.

[31] Mr. Ivanovski was not under oath at the time of his initial statement to the police. However, he was under oath at the preliminary inquiry and he gave the same evidence at that time. Further, there was an opportunity for contemporaneous cross-examination at the preliminary hearing. Defence counsel simply declined to avail himself of the opportunity. It is the opportunity, and not the fact, of contemporaneous cross-examination that is determinative.

[32] The Crown relies on the Ontario Court of Appeal decision in R. v. Saleh,[^9] dealing with a witness who refused to testify at trial but who had previously testified at the preliminary inquiry. The trial judge admitted the evidence from the preliminary inquiry, relying upon s. 715(1) of the Criminal Code. I agree that this is an analogous situation and that the same principles should apply. In that case, the Court held as follows, at para. 71:

To exclude evidence that would otherwise qualify for admission under s. 715(1), an accused must demonstrate that she or he “did not have full opportunity to cross-examine the witness”. The operation of the exception is not determined by the use actually made of the opportunity to cross-examine but rather by the availability of a full opportunity to do so: R. v. Ingraham (1991), 66 C.C.C. (3d) 27 (Ont. C.A.), at p. 43; R. v. Davidson (1988), 42 C.C.C. (3d) 289 (Ont. C.A.), at p. 298. The opportunity to cross-examine is contemporaneous with the witness giving evidence at the preliminary inquiry. In a similar way, denials of full opportunity to cross-examine the witness must arise from events that take place at the preliminary inquiry where the witness gives the evidence. Improper judicial interference, for example, may render the opportunity to cross-examine inadequate, thus depriving an accused of a “full opportunity to cross-examine the witness”.

[33] The accused in the case before me is in an even better position than was the accused in Saleh. In addition to having the opportunity to cross-examine Mr. Ivanovski at the preliminary inquiry, defence counsel actually did cross-examine him at trial. Mr. Ivanovski had no motive to fabricate. Whether or not his evidence can be seen as reliable is more a matter of the accuracy of his observations than any concerns about truthfulness. Although Mr. Ivanovski claimed to have a poor memory, there could still be full cross-examination on the potential frailties in his evidence, such as the distance from which he made his observations, the lighting, his eyesight, the length of time he had to observe, and the time that elapsed prior to giving his initial description to the police.

[34] Mr. Ivanovski described a red four-door Charger with tinted windows. Importantly, Mr. Ivanovski also observed a very particular and unusual feature about this car. He noticed that the rim (or hubcap) was missing from the tire on the front passenger side, such that the tire at the front looked completely black and the tire at the back had silver or chrome trim. This is the kind of detail that, if corroborated, adds substantial weight to the statement. In this case, Mr. Warner did in fact regularly operate a red four-door Charger with tinted windows and that car had the same peculiarity with its tires. This is an additional corroborative factor that supports threshold reliability.

(iv) Conclusion

[35] I see no policy basis to exclude this evidence. It has considerable probative value. The requirements of necessity and reliability have been met. There is very little, if any, prejudice to the defendant that cannot be overcome by the ability to cross-examine the witness at trial. Accordingly, I find the transcript of Mr. Ivanovski’s testimony at the preliminary hearing to be admissible as part of his evidence at the trial before me.

D. EVIDENCE OF J.N.

(i) The Evidence

[36] J.N. was arrested by police just outside his high school at approximately 11:00 a.m. on January 13, 2011. He was 17 years old at the time. He made some statements to the arresting officers in the car on the way to the police station, admitting his involvement in a number of the robberies. He told the officers what he had worn at a recent robbery (a hoodie that appeared to be part of a skeleton costume) and directed the officers to a location in the woods where he said he discarded it, wrapped in a grey plastic bag. At the police station, he agreed to give a full statement to the police, which was video-recorded in two segments, with a 70-minute break in between. In that statement, he identified Jirah Warner as having been involved in three bank robberies as the driver of the get-away car, specifically: the October 4 robbery of the Bank of Montreal in Markham; the October 15 attempted robbery of the Bank of Montreal in Bradford, which was also the occasion of the hold-up of the customer at the ATM machine; and the October 15 robbery of the Bank of Montreal on Leslie St. in Toronto. He said the get-away car for each occasion was a red Charger owned by Jirah Warner and that Mr. Warner waited in the car while the others carried out the robberies. He also said that Mr. Warner had bragged to him about having done a home invasion on December 31, 2010.

[37] At trial, Mr. N testified as to his involvement in bank robberies on September 20, October 4, and October 15, 2010, as well as the October 15 robbery of the woman at the ATM machine. For the most part, his testimony as to his own role in those crimes was consistent with what he told the police on January 13, 2011. However, he gave dramatically different evidence with respect to Jirah Warner’s involvement. I granted leave to the Crown to cross-examine Mr. N as an adverse witness.

[38] At trial, Mr. N testified that the persons involved in the September 20, 2010, robbery were himself, Adrian, “K.D.”, and K.D.’s cousin (whose name he claimed he did not know). They drove to and from the bank in a green Honda supplied and driven by K.D., which Mr. N said he believed to have been stolen. He testified that Mr. Warner was not present for this robbery, and indeed Mr. Warner is not charged with this offence.

[39] According to Mr. N’s testimony at trial, the October 4, 2010, robbery of the Bank of Montreal in Markham was planned by himself, K.D., Adrian, and Mr. Warner. He said that K.D. told them that he had a new car for this event, a red Charger. Their planned roles were that Mr. Warner would hold the door and that K.D. would enter first, followed by Adrian and then Mr. N. On October 4, 2010, they headed out in the red Charger with K.D. at the wheel. However, according to Mr. N, Mr. Warner became scared and wanted to leave. Therefore, they stopped the car, let Mr. Warner out, and proceeded to do the robbery without him. Mr. N testified that K.D. parked the car on a residential street and all three of them went into the bank and carried out the robbery. This is in stark contrast to Mr. N’s police interview in which he said that Mr. Warner owned the red Charger, that he drove them to the bank, that he waited in the car while they robbed the bank, and that he then drove them to the park where the four of them divided up the stolen money.

[40] With respect to the robberies that occurred on October 15, 2010, Mr. N testified at trial that Mr. Warner was not there. He said that the car they used was the same red Charger and that it was driven, as before, by K.D. and left on a side street while they carried out the robberies. With respect to the Toronto robbery on October 15, Mr. N claimed that they left the car behind the bank with the engine running while all three of them went in to carry out the robbery. According to Mr. N’s evidence at trial, the three individuals involved in this robbery were himself, K.D., and K.D.’s cousin Nigel, who he said was not the same cousin involved in the September 20 robbery. Again, this is in stark contrast to Mr. N’s statements to the police that for all of these events on October 15, the get-away car was Mr. Warner’s red Charger and that Mr. Warner waited in the car while the others did the robberies.

[41] Mr. N claimed at trial that he gave his statement to the police after he had been denied the right to call a parent or lawyer and after repeated assaults by police officers. He said he only implicated Jirah Warner because he believed Mr. Warner had “ratted him out” to the police and in order to get even with him.

(ii) Necessity

[42] Mr. N has completely recanted his prior statement as to any involvement by Jirah Warner in any of the crimes with which he is charged. This is a classic KGB situation and would almost by definition meet the requirement of necessity. This, however, is precisely the point made by Mr. Mariah on behalf of the defence. He submits that there is virtually no analysis in the case law as to how the requirement of necessity is met in situations in which evidence is recanted; the cases tend to simply accept without question that a recantation meets the test.

[43] Mr. Mariah submits that B. (K.G.) establishes three governing principles for the assessment of the necessity criterion:

(i) A flexible approach should be employed.

(ii) The inquiry is fact-specific and dependent on the circumstances.

(iii) The court should consider whether the evidence sought can be obtained not only from the recanting witness but from any other source.

[44] There is no question that the first two principles listed are applicable. However, I do not accept that the third principle advanced is supported by a proper analysis of the KGB case or other case law, nor do I find it to be a sustainable argument.

[45] In support of this purported third governing principle, Mr. Mariah relies on p. 799 of the decision of Lamer J. in KGB, which I quoted at para. 13 above, but which I repeat here for ease of reference:

In the case of prior inconsistent statements, it is patent that we cannot expect to get evidence of the same value from the recanting witness or other sources: as counsel for the appellant claimed, the recanting witness holds the prior statement, and thus the relevant evidence, “hostage.” The different “value” of the evidence is found in the fact that something has radically changed between the time when the statement was made and the trial and, assuming that there is a sufficient degree of reliability established under the first criterion, the trier of fact should be allowed to weigh both statements in light of the witness’s explanation of the change. [Emphasis added by Mr. Mariah, except where noted in para. 13 above.]

[46] In particular, Mr. Mariah focuses on the words “or other sources” as support for the proposition that if there are other witnesses who could provide evidence as to the events in question, the necessity requirement is not met. In many cases, such as spousal and sexual assaults, apart from the accused there is only one witness to the event in question. Mr. Mariah concedes that in those cases the necessity requirement is readily met when that sole witness recants. However, the defence position is that the focus cannot be on any individual recanting witness when there are other potential witnesses who could provide evidence as to the event. In this case, Mr. Mariah argues, the Crown has failed to demonstrate that the evidence Mr. N could give is not available from another source, given that there were several participants in each of the robberies and the Crown knows the identity of most of them. He asserts that when the Crown is “able to obtain the same quality of evidence from another source then it is no longer necessary to rely on a prior inconsistent hearsay statement with all of its attendant frailties, difficulties and dangers.”

[47] Other than this one sentence from KGB, Mr. Mariah has not pointed to any authority supporting this proposition. I am not aware of any other authority to this effect, nor has the Crown been able to find any. On the other hand, neither am I aware of any other case that has specifically considered this issue.

[48] I do not find any support for this proposition in the passage relied upon from KGB. The sentence must be read in context. It is immediately followed by an explanation that it is the “relevant evidence” that is held hostage, and it is clear that the “relevant evidence” being referred to is the prior statement of that recanting witness. The Court does not examine whether other witnesses might be available because other witnesses necessarily cannot provide the “same” evidence; they can only provide their own observations, not those of the recanting witness. Further, this sentence and reference to “other sources” is followed immediately by a sentence dealing with what is meant by “evidence of the same value,” and it is apparent from this discussion that this is referring to the evidence of the recanting witness, not the evidence of any other witness.

[49] It is also important to note that the references in p. 799 to evidence of the “same value” being available from the witness “or other sources” is drawn from language used by Wigmore in an entirely different context, as cited at pp. 796-97 of KGB as follows:

However, it is important to remember that the necessity criterion “must be given a flexible definition, capable of encompassing diverse situations” (Smith, at pp. 933-34). Wigmore, vol. 5 (Chadbourn rev. 1974), § 1421, at p. 253, referred to two classes of necessity:

(1) The person whose assertion is offered may now be dead, or out of the jurisdiction, or insane, or otherwise unavailable for the purpose of testing. This is the commoner and more palpable reason….

(2) The assertion may be such that we cannot expect, again, or at this time, to get evidence of the same value from the same or other sources.... The necessity is not so great; perhaps hardly a necessity, only an expediency or convenience, can be predicated. But the principle is the same.

[Italics in original; underlining added.]

As an example of the second type of necessity, many established hearsay exceptions do not rely on the unavailability of the witness. Some examples include admissions, present sense impressions and business records. This is because there are very high circumstantial guarantees of reliability attached to such statements, offsetting that fact that only expediency or convenience militate in favour of admitting the evidence.

[50] What was decided in KGB was that necessity is established when the witness’s previous testimony cannot be obtained, and not merely when the witness himself is not available. In Khelawon, the Supreme Court described its former pronouncement in KGB as follows, at para. 78:

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. [Emphasis in original.]

[51] In Khelawon, there were three witnesses who had given statements to the police, all of whom recanted. Because all had recanted, there was no discussion about whether there was already adequate evidence because of the testimony of other witnesses. However, throughout the decision there was no suggestion that the result would have been any different if only one witness had recanted. I do not find this surprising. The fact that other witnesses to an event have already testified is never, on its own, a bar to the Crown calling additional witnesses who saw the same event. In my view, the reverse is also true. When one witness’s evidence is unavailable, whether because of failing memory or death or recantation, the fact that other witnesses have testified as to their observations of the same event is not a bar to admitting into evidence a KGB statement of the missing witness.

[52] Further, in my view, there is no onus on the Crown to establish that there are no other witnesses available as a precondition to a successful KGB application with respect to a missing or recanting witness.

[53] In response to this defence argument, the Crown points to the Ontario Court of Appeal’s decision in R. v. Snyder,[^10] in which two men (Burgess and Doucette) committed a home invasion and robbery. Both were arrested shortly afterwards, and both gave statements to the police indicating that they had separately been asked to commit the robbery by Snyder and had given proceeds from the robbery to Snyder to pay off drug debts. Both were charged, along with Snyder. Burgess and Doucette pleaded guilty and were convicted. The charges against Snyder proceeded to trial. At that trial, Burgess testified in a manner consistent with his statement to the police and also testified that Snyder was present in the car that drove him and Doucette to the location of the robbery and picked them up afterwards. However, Doucette testified at trial that he could remember committing the robbery, but nothing else, and insisted that he did not know and had never heard of Snyder. The trial judge ruled that Doucette’s statement to the police (which was largely similar to the evidence and statement of Burgess) was admissible at trial. This decision was upheld by the Court of Appeal, as was the ultimate conviction of Snyder on the charges of robbery and break and enter. There is no specific discussion in the decision of the fact that the testimony of Burgess was available, although it was apparent that the Court was fully aware of that fact and indeed commented on the similarities between their two versions of what happened.[^11] It is clear that this was not an issue that troubled the Court. It had no bearing on whether the KGB statement of Doucette was admissible.

[54] In the circumstances of this case, the prior testimony of Mr. N as to the involvement of Mr. Warner in these crimes is no longer available because of Mr. N’s recantation at trial. In my view, the requirement of necessity is met.

(iii) Reliability: Alleged Police Misconduct

The allegations made by J.N.

[55] In his evidence at trial, J.N. testified that at the time of his arrest (which was effected outside his school by Officers David Burley and Mark Waddell), he was not advised of his right to counsel. Immediately after being cuffed, he was turned over to Detectives McDonald and Palermo and placed in the rear seat of a police car, with Det. McDonald driving and Det. Palermo in the rear seat with Mr. N. According to Mr. N’s testimony at trial, the officers in the car did not tell him of his right to counsel, nor did they tell him he had the right to remain silent. On the contrary, he said the officers told him that he was under arrest for robbery and that he needed to tell them what happened “because people are saying [his] name.” He said he asked the officers who had been saying his name and asked them specifically if particular individuals had named him, referring to Adrian, Najewan Grant, Bobby Grant, and Jirah Warner. The officers responded that they could not tell him. Mr. N denied that he told the officers he had seen the Charger on TV, or that he saw the driver of the car on TV, or that Jirah Warner was the driver.

[56] When cross-examined by the Crown, Mr. N said that on the way to the police station Det. Palermo hit him “a few times” by elbowing him in the ribs. He also said that Det. McDonald, turned around from the driver’s seat, made a fist at him, and told him that he had better talk to them when they got to the station. He acknowledged making a stop along the way and pointing out to the officers where he had thrown away the hoodie he had worn at some of the robberies.

[57] On further cross-examination by defence counsel, Mr. N said that he was not advised of his right to counsel and also was not told that he had the right to have a parent or other adult present during questioning. He said he asked the officer if he could call his Mom or his lawyer and that they told him he had to make a statement first. He claimed to have said he would not make a statement, at which point Det. McDonald turned around, made a fist, and said, “You’d better make a statement.” He said they drove to a place behind a building and Det. Palermo hit him, at which point he agreed to give a statement. He testified that before arriving at the station, the officers asked him where the skeleton hoodie was and he showed them the location where he had thrown it away.

[58] Mr. N was taken before the booking sergeant at the police station, at which point he was being videotaped. He was advised of his rights at that time. After booking, he was placed in an interview room.

[59] According to Mr. N, the information he was given at the time of booking was the first time anybody advised him of his rights. He reiterated at trial that he had asked on three occasions to speak to his mother or a lawyer (at the school, in the car, and in the interview room after booking) and that he was told each time that he could only do so after he had given a statement. He also said that the officers repeatedly told him that other people were giving statements and were implicating him, so he should give his own side of the story.

[60] At the time of booking, Mr. N was asked if he had taken any drugs or consumed any alcohol, and he replied that he had not. At trial, he said this was untrue. He said he had smoked marijuana and had a shot of vodka at 7:00 a.m. before he went to school and also shared a joint with a friend just prior to his arrest. With respect to his inconsistent statement during booking, he explained, “Obviously, I wasn’t going to tell them that.”

[61] Mr. N testified at trial that when he was in the interview room, and before going to the video room to give a statement, Detectives McDonald and Palermo came in and started hitting him with a phone book. In addition, he said Det. McDonald slapped him in the face four times. He said Det. McDonald was not wearing a ring and denied that he had ever been hit with a ring. He said he was 100% sure that there was no incident in which he was hit with a ring. Mr. N testified that after these assaults in the interview room he agreed to give a statement because he did not want to get hit again.

[62] Mr. N also testified that when he got to the video room, he was hit again with the phone book when he said he would not give a statement. He then commenced the statement, which was videotaped. He acknowledged that on the video he did not ask to speak to an adult when given that opportunity. He said that the officers told him to say that. He also acknowledged that the officers did not initially tell him what he had to say and in particular never told him what he was supposed to say about Jirah Warner.

[63] After Mr. N had been speaking on video for about two hours, the officers took a break. According to Mr. N, the officers then gave him a picture of Devaine Nelson and told him he had to say that was the individual whom he had identified in his statement as “K.D.” He told them he would do that, but when the video was turned back on, he denied that this was a picture of K.D., at which point the officer removed the disk and broke it. He said Det. McDonald banged his fist on the table and said “You’d better say it’s him.” He then agreed to back on video and say it was K.D. in order to avoid being hit again, and did so.

[64] Mr. N testified that after the second video session, the officers took him to an office area and showed him pictures of other robberies. He said that when he told the officers he did not know anybody in the pictures, Det. McDonald kicked him in the triceps. He said he was 100% sure that this occurred after the video was completed.

[65] Mr. N was confronted in cross-examination with his evidence from the preliminary hearing in which he gave contradictory evidence on a number of these points. In particular, on Day 3 of the preliminary, he said that:

(a) Before he started the statement, and before he was taken to the video room, Det. McDonald slapped him across the face. The officer was wearing a ring and this caused a cut on Mr. N’s jaw. (pp. 52-54 and 56)

(b) While in the video room, but before the video started, Det. Palermo punched him in the balls. (pp. 55-56)

(c) While in the video room, but before the video started, Det. McDonald kicked him in the arm. He was sitting and the officer was standing. As a result, he was in pain throughout the interview.(pp. 54-56)

(d) The police hit him in the face a total of 12 times from the time he was arrested to the time he finished giving his statement. (pp. 117-118)

(e) He was hit with a phone book four or three times during the break in the video statement, but was not hit with a phone book at any other time. (pp. 118-119)

(f) Det. McDonald hit him in the face four or five times with a backhand and an open hand. The ring the detective was wearing had something on it that “bulged out.” (p. 118)

[66] In these prior inconsistent statements, Mr. N provided different particulars with respect to where each alleged assault occurred, and when, and added another form of assault (being punched in the balls) which he did not mention at all at trial. He insisted at trial that he was 100% sure that there had been no ring; at the preliminary inquiry he was very clear about the ring and that it caused a cut. He also said at trial that he was 100% sure he was kicked in the arm after the video statement was concluded; at the preliminary inquiry he said it was before and that he was in pain throughout the interview as a result.

[67] When confronted with these inconsistencies, Mr. N gave various explanations, including: he was “under the influence” at the time of the assaults; he had forgotten being punched in the balls because he was tired the day he gave that evidence at trial; he was telling the truth at the preliminary inquiry but “might have been a bit messed up;” he started remembering “some stuff that happened” to him at the end of March 2014 because things started to “come back” to him after he was served with the subpoena; at the preliminary inquiry he just wanted to get out of there; and, at that time, he just wanted to “forget everything and start over.”

The testimony of the police officers

[68] Detectives Palermo and McDonald were in the school parking lot at the time Mr. N was arrested. Det. Palermo testified that the arresting officers turned Mr. N over to him and he placed him in the rear passenger side of the police car. The arresting officers told Det. Palermo that Mr. N had been told he was under arrest for robbery but had not been cautioned or advised of his right to counsel. Det. Palermo said he took verbatim notes of his conversation with Mr. N in the car. Det. Palermo told Mr. N that he was going to be charged with three offences of robbery with a firearm and three offences of wearing a disguise with intent. Det. Palermo testified that this was all the information he had; he knew nothing about the particulars of the offences. When asked, Mr. N said he understood, but asked what the charges were about. Det. Palermo advised him that he first had to tell him some things and then he would explain. According to Det. Palermo he then proceeded to read from the back of his memo book, telling Mr. N of his right to counsel, asking him if he wanted to speak to a lawyer, advising him of his right to remain silent, and cautioning that anything he said could be used against him in court. Mr. N responded each time that he understood and replied “No sir” when asked if he wanted to speak to a lawyer. Det. Palermo then explained to Mr. N that the charges related to three bank robberies in which he was armed with a gun and had his face covered. He asked Mr. N if he understood, to which he replied, “Yes, sir. Who snitched on me? Was it the guys in the red Charger?”

[69] Det. Palermo testified that he had no idea what Mr. N was talking about. However, Mr. N went on to say that he had seen something on the news that morning about the robbery of a convenience store and that he recognized the car and saw the driver on a stretcher. Det. Palermo asked, “What driver?” Mr. N responded, “Jirah Warner. He drives a red Charger. It’s his car.” He also said those guys had snitched on him.

[70] Det. Palermo testified he told Mr. N that when they got to the station they would like to talk to him about the robberies on video and Mr. N said “Yes.” He then volunteered that he had been at those banks with those people, but that he did not have the gun. Det. Palermo had no information as to the location of the banks. He asked Mr. N which banks and Mr. N said they were in Markham, Port Union and Leslie Street. Det. Palermo asked who Mr. N had been with and wrote down in his notebook phonetically what Mr. N said, “Adrian, Negawon, Jara, KD.” He asked for last names and was told, “Adrian McEwan, Negawon Grant, Jara Warner” and that he did not know KD’s last name.

[71] Det. Palermo testified that Mr. N was polite throughout and began crying after he had provided these names. When Det. Palermo asked him what was the matter, he said, “I didn’t have the gun. I stood watch to make sure nobody called the police.” Det. Palermo asked what he had been wearing at the robbery and Mr. N told him it was a skeleton hoodie and that he had put it in a grey plastic bag and thrown it away in a wooded area. He said he could take them there. Det. McDonald drove to the intersection and went into the woods in the area Mr. N had pointed out but could not find the bag in the snow.[^12]

[72] Det. McDonald returned to the car and they proceeded to the police station where Mr. N was paraded, searched and placed in a locked interview room.

[73] Det. Palermo testified that he reported to the officer in charge of the investigation, Det. Tramantozzi, what Mr. N had disclosed so far and that he had agreed to provide a video statement. Det. Tramantozzi asked him to proceed with Det. McDonald to take the statement. Det. Palermo testified that he then printed off a blank form with information under the Youth Criminal Justice Act. After first determining that Mr. N was in Grade 12 and could read and write well, he left the form with him and told him to review it. He then left Mr. N in the room with instructions that he should knock on the door if he needed anything such as food, to use the bathroom, or to use the phone. He further testified that he remained in the office outside that interview room reviewing information about the case in preparation for interviewing Mr. N. During that whole time, he said nobody entered the room or spoke to Mr. N.

[74] Det. Palermo testified that at 13:52 pm he entered the interview room and asked Mr. N if he had read the form. Mr. N said that he had. In response to questions asked by Det. Palermo, Mr. N said that he did not want to call a lawyer at that time, did not want to contact a parent and was prepared to do the video statement. At 13:54, Det. Palermo escorted Mr. N to the video room.

[75] Det. Palermo denied assaulting or having had any physical altercation with Mr. N and denied that Mr. N had ever asked to speak to a lawyer or parent.

[76] Det. James McDonald confirmed much of Det. Palermo’s testimony. He heard Det. Palermo advising Mr. N of his rights in the back seat of the police car. He said that he did not take notes himself, but that Det. Palermo was writing constantly as he was speaking with Mr. N. Det. McDonald recalled Mr. N being curious about who snitched on him. Det. McDonald also confirmed the information about the hoodie and that he had searched the area indicated without success which he attributed to there having been quite a bit of fresh snow. He was present when Det. Palermo gave Mr. N the YCJA form and told him to knock on the door if he needed anything. He confirmed that apart from that, nobody went into the room in which Mr. N was being held until they went to get him and take him to the video room.

[77] Det. McDonald denied threatening Mr. N at any time and denied ever assaulting him.

[78] Both detectives testified that they continued with the video until Mr. N requested a break, which was two hours and ten minutes after the video interview commenced. They also both testified that, unbeknownst to them, the video camera had been programmed to stop at the two-hour mark, so the last 10 minutes of the first session were not recorded. The circumstances of the break, and what had happened in between then and resuming the interview, were stated at the beginning of the second video, and Mr. N agreed to them.

[79] Both detectives denied that there was any discussion with Mr. N about what he should say during the break between the two recorded sessions. They also denied that there was any further discussion with Mr. N off-camera at the end of the video. They both said that at the end of the video session, Mr. N was simply returned to the room in which he was being detained.

There was no police misconduct

[80] I reject Mr. N’s testimony about the physical assaults and threats upon him as being completely incredible. Mr. N was completely incapable of keeping his own story straight. The particulars of the alleged assaults provided at the time of the preliminary hearing are markedly different from the description of those events given at trial. He provided no plausible explanation for those discrepancies. He was not, as he claimed, inebriated at the time of the interview. Even if I accepted his evidence as to his 7:00 a.m. vodka and marijuana consumption and his subsequent sharing of a marijuana joint shortly before 11:00 a.m., the video interview did not begin until 2:00 in the afternoon. Whatever effects might have been present before, if any, were gone by then. It is apparent from the booking video and from the video statement itself that Mr. N was not impaired.

[81] It is also apparent from the video footage at the police station that Mr. N was relaxed and calm, even jovial at times. He was in no way fearful or cowed by the police. It is clear from his manner of speaking that he is using his own words, and not merely repeating a rehearsed text or something somebody else told him to say. Further, he had no visible physical injuries, notwithstanding his allegation of being cut on the face by Det. McDonald’s ring.

[82] I found the two police officers to be credible and reliable witnesses. They conceded points about which they were unsure, and admitted things that were not favourable to them. For example, both agreed that Mr. N had not been told about his right to have a parent or other adult present during questioning until they were back at the police station just before commencing the interview. Nothing turns on this because Mr. N was advised of this right before he gave his statement, but it does confirm my sense that the officers were telling the truth. It is also apparent from the video statement that when Mr. N was being advised of his rights, he was somewhat irritated at having to hear it all over again. He even interrupted his interviewer at one point to protest about the necessity of going through the whole recitation of rights. I find that Mr. N was fully aware of his rights, and waived them clearly. He lied about not being advised of his rights earlier, and he lied about having asked to call his mother and a lawyer.

[83] To summarize, I find as a fact that Mr. N was fully advised of his rights before he gave the statement and that he repeatedly stated that he did not wish to call a lawyer or a parent. He was treated with courtesy. He was not assaulted or abused, he was not threatened, and he was not offered any inducements for providing a statement. In short, there was no conduct or misconduct by the police that would in any way undermine the reliability of the videotaped statement given by Mr. N.

(iv) Reliability: Circumstantial Safeguards

[84] KGB establishes that the fact that a statement is videotaped and under oath supports its reliability and admissibility. In this case, the videotaping is an important factor supporting reliability, but the fact that the statement was under oath is significantly less so.

[85] Mr. N’s statement was videotaped almost in its entirety. The only portion not recorded was approximately 10 minutes at the end of the first session when the recorder automatically shut off. The officers involved have provided an explanation for that irregularity, which I accept. When the interview resumed, everything that happened in the intervening period was stated by the officers and agreed to by Mr. N. The portion of the interview that was not recorded was minor in scope and duration and did not affect Mr. Warner. For present purposes, the missing 10 minutes does not undermine the reliability of the statement. The interview was a lengthy one and the fact that it was videotaped is of considerable assistance in the determination of ultimate credibility. Mr. N’s tone of voice, his demeanour, and the way he interacted with the police officers are relevant to that ultimate determination.

[86] Mr. N’s statement to the police was under oath. He had been warned about the importance of telling the truth and of the consequences of lying, including that he could face criminal charges for doing so. These are part of the circumstantial safeguards stipulated in KGB. However, it is not possible to place much reliance on those factors in this case.

[87] Mr. N initially lied under oath to the officers when describing the hold-up of the woman at the ATM in Bradford on October 15, 2010. He denied that he had anything to do with it. Later, when pressed by the officers, he admitted that he had been the one who held up this woman. This demonstrates that Mr. N was prepared to lie to minimize his own involvement, and also prepared to lie about the involvement of others, notwithstanding the circumstances in which he was giving the statement.

[88] Mr. N’s evidence at trial cannot be reconciled with many aspects of his statement to the police. His evidence at trial was also under oath and in circumstances of solemnity with criminal consequences for failing to tell the truth. Nevertheless, it is clear that either Mr. N lied at trial, or he lied to the police. It follows that being under oath is irrelevant to him and in no way supports an inference that he is likely to be telling the truth. Likewise, the solemnity of the occasion and the fact that he was giving a statement about a serious matter to police officers meant nothing at all to Mr. N and do not support the reliability of his statement.

[89] I place no weight whatsoever on the oath, nor on the warnings given to Mr. N about the consequences of lying under oath, nor on the circumstances in which the statement was given. These factors do not support the reliability of his evidence.

(v) Reliability: Adequate Substitute for Contemporaneous Cross-Examination

[90] The Supreme Court noted in Khelawon that the most important of the KGB factors is the availability of the witness for cross-examination.[^13] In this case, defence counsel has had two opportunities for a full cross-examination of Mr. N – first at the preliminary hearing and then again at trial.

[91] Mr. Mariah points out that Mr. N originally denied holding up the woman at the ATM machine, but when the police challenged his version of that event and pushed him on the point, he admitted that he had been the one who did that. This hold-up is the only detail in the statement upon which Mr. N was pressed or challenged; he was never challenged in respect of anything he said about Mr. Warner. Mr. Mariah submits that this underscores the importance of contemporaneous cross-examination and demonstrates that the defence would be unfairly prejudiced by permitting the statement to be admitted into evidence untested by contemporaneous cross-examination on any facts related to Mr. Warner.

[92] I do not agree. This is not a situation where the recanting witness claims to have no memory of the underlying incident, such that cross-examination can sometimes be very difficult. Here, Mr. N acknowledges all of the details of the robberies that were the subject of his statement, but recants his earlier assertion that Mr. Warner was involved. Further, he has provided an explanation for why he implicated Mr. Warner, claiming that he believed Mr. Warner had betrayed him to the police and he was trying to get even with him by saying he was also involved.

[93] Through cross-examination the defence has been able to establish that Mr. N had a motive to lie, and he has admitted to lying for that reason. Cross-examination has also shown that Mr. N lied about numerous other things in the course of his police statement as well as at the preliminary hearing and at trial. Indeed, he has now recanted every incriminating thing he ever said about Mr. Warner. It is hard to imagine a more effective result from any cross-examination. The fact that this result was only achieved later (rather than at the same time as the police statement) does not, in my view, detract from its effectiveness.

[94] Mr. Mariah also argues that Mr. N’s motive to lie is a factor undermining threshold reliability, particularly when coupled with his overall lack of veracity. I agree these are important factors to take into account in assessing credibility. However, I do not agree that this is the stage for doing so. Motive to lie is an issue more relevant to ultimate credibility than to threshold reliability.

[95] This issue arose in R. v. Trieu.[^14] Rosenberg J.A. concurring in the result, considered the witness’s motive to lie as a factor supporting a decision to exclude the hearsay evidence.[^15] However, the two other judges (Moldaver and MacPherson JJ.A.) held to the contrary, ruling that where there could be meaningful cross-examination at trial, this issue was one of ultimate reliability for the trier of fact. Moldaver J.A. stated, at para. 93:

With respect, I disagree with this aspect of my colleague’s analysis. I do so not because I doubt that S.T. had an apparent motive to falsely implicate the appellant; nor that a motive to fabricate is irrelevant in the threshold reliability analysis. I simply believe that when a declarant is available for meaningful cross-examination, the place to deal with motive is in the cross-examination.

[96] The question at this stage is not whether I believe what Mr. N said in his statement to the police, but whether I will be able to make that determination in the absence of contemporaneous cross-examination. As the Supreme Court of Canada held in Khelawon, at para. 76:

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.

[97] In my opinion, the availability of Mr. N for cross-examination at trial, when coupled with the level of detail in the videotaped statement, is an effective substitute for contemporaneous cross-examination on the statement.

(vi) Reliability: Corroborative Factors

[98] In making a determination as to threshold reliability, it is also relevant to consider whether there is independent evidence corroborating particulars provided by the witness. Mr. Mariah submits, and I agree, that this inquiry should ideally be directed to particulars implicating Mr. Warner, and not other aspects of Mr. N’s evidence. Nevertheless, it is useful to start with corroboration of Mr. N’s story generally.

[99] There can be no doubt that Mr. N participated in some of the subject robberies and is able to provide first hand evidence of his own involvement and the involvement of others. He provided numerous details of these crimes that could only be known by somebody who was there, and which have been corroborated by other evidence, including:

• He named Devaine Nelson as one of the perpetrators, known by the nickname “KD”. He described the shotgun used.
• His description of the shotgun matched that of eyewitnesses from the bank, as well as the shotgun found in Mr. Nelson’s bedroom upon execution of a search warrant.
• Others named by Mr. N as being involved have admitted their involvement by pleading guilty, including Mr. Nelson.
• His description of the red Charger as being the getaway car matches the observations of independent witnesses.
• His description of the clothing he wore at two of the robberies (a skeleton hoodie) is corroborated by the video of the robbery and police recovered the hoodie in a grey plastic bag thrown into the woods in the area where Mr. N said he had discarded it.

[100] In addition, Mr. N himself pleaded guilty to a number of these offences. In Trieu, the Court of Appeal held that the guilty plea of a witness can be a factor supporting threshold reliability of his statement to the police.[^16] This is particularly so when his own admitted involvement was greater than the role he attributed to Mr. Warner.

[101] Some of the particulars Mr. N provided relating to Mr. Warner are corroborated by other evidence, mainly in respect of the car involved. Specifically, Mr. N told the police that the getaway car for three of the robberies (one on October 4, and two on October 15) was a red Charger, that Jirah Warner drove it and waited in the car while the robberies were carried out, and that Jirah Warner owned that vehicle. The Crown relies on the following corroborative evidence:

• At all material times, Jirah Warner was the registered lessee of a 2007, four-door red Dodge Charger. Mr. Warner’s address on the vehicle registration is 28 Wandering Trail, Scarborough. In October 2010, the license plate on this car was BFXN 112.
• On October 15, 2010, at approximately 11:30 a.m., a Bank of Montreal in a plaza on Leslie Street in Toronto was robbed by three men. Craig Dean was in the plaza at the time of the October 15, 2010 robbery. He testified that he was outside making a call on his cell phone at approximately 11:45 a.m. when he saw three men running towards him and down an alley. They were running from the area of the Bank of Montreal. One of them was wearing a skeleton hoodie and mask. The three men got into a red Charger, which sped away.
• Amir Afrasiabi owns and operates a shoe repair shop in the same plaza. At 11:35 a.m. he saw three men run past his store and get into a red Charger that sped away. He believed the driver of the car was sitting in the car waiting. He made note of the license plate of the Charger, missing only one of the digits, and testified it was BF?N 112.
• At 12:06 p.m., Mr. Warner’s red Dodge Charger was not in the driveway or in the garage at his address at 28 Wandering Trail. Police officers kept the location under surveillance. The Charger arrived and parked at 1:40 p.m. and the sole occupant entered the house. The officer was not close enough to make a positive identification, but the driver’s general description matches that of Jirah Warner.
• At 3:05 p.m. on October 15, the red Charger left 28 Wandering Trail and was followed by police to various locations. The car was photographed, as was the driver. The driver was Jirah Warner. The car was noted as having four doors, tinted windows, and to be missing the hubcap on the right front tire.
• Mr. Warner was also seen driving the Charger on other dates, including October 18, 2010 and January 12, 2011.
• On October 16, a Toronto Sun newspaper article about the October 15 bank robbery reported that the robbers fled in a red Charger and that a witness had provided police with six of the seven digits of its license plate.
• A clipping of this article was found in Devaine Nelson’s bedroom after his arrest.
• On November 5, 2010, the license plate on the red Charger was changed to a new plate, BKVZ 203. Police officers observed Mr. Warner driving the vehicle with the new plate on it in January 2011.
• Mr. N told police that Mr. Warner had bragged to him about doing a home invasion on New Years Eve. Kevin Breen testified that he was the victim of a home invasion at his home on Gladys Road on December 31 and that the robbers (four or five in number) fled down the street, after which he heard a car door slam. At the same time, Mr. Ivanovski, who lives a few doors down the street on Gladys, saw four men jump into the car parked in front of his house and speed off. He told police that it was a four-door red Charger with tinted windows and that the front passenger side tire was missing its hubcap.

[102] Thus, I find that there is independent evidence linking Mr. Warner to the red Charger and linking the Charger to the crimes in question. Obviously, that is not proof that he was actually driving the Charger at the times of these offences, but it does provide some corroboration of Mr. N’s statement to the police about Mr. Warner.

(vii) Conclusion

[103] The Crown has satisfied its onus of establishing the threshold reliability of Mr. N’s statement to the police. It was given in circumstances of solemnity, when Mr. N knew what was a risk, for himself and others. His statement implicates himself even more than it does Mr. Warner. The statement is detailed and extensive and was videotaped. There is ample opportunity to observe Mr. N during the course of the interview. The defence has had a meaningful opportunity to cross-examine Mr. N on his statement, as well as on other aspects of his testimony. That cross-examination has been fruitful, both with respect to Mr. N’s general veracity and character and with respect to what he said about Mr. Warner and his potential motive for lying about his involvement. I find that I am in as good a position to judge Mr. N’s credibility based on this as I would have been if the statement had been given originally at trial, with contemporaneous cross-examination. There is some independent corroboration for Mr. N’s evidence generally, and with respect to Mr. Warner. There is little, if any, prejudice to the defence if the evidence is admitted. Its probative value far outweighs any limited prejudicial impact.

[104] Accordingly, I find that the videotaped statement given by Mr. N to the police is admissible as his evidence at trial and may be considered by me for its truth.

MOLLOY J.

Released: July 31, 2014

COURT FILE NO.: CR14300002670000

DATE: 20140731

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

JIRAH WARNER

Defendant(Respondent)

REASONS FOR decision

Molloy J.

Released: July 31, 2014

[^1]: R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, at para. 78. [^2]: See R. v. Khan, [1990] 2 S.C.R. 531](https://www.canlii.org/en/ca/scc/doc/1990/1990canlii77/1990canlii77.html); R. v. Smith, [1992] 2 S.C.R. 915](https://www.canlii.org/en/ca/scc/doc/1992/1992canlii79/1992canlii79.html); R. v. B. (K.G.), [1993] 1 S.C.R. 740](https://www.canlii.org/en/ca/scc/doc/1993/1993canlii116/1993canlii116.html); R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787. [^3]: R. v. B. (K.G.), supra note 2. [^4]: R. v. Khelawon, supra note 2. [^5]: Ibid, at paras. 61-63. [^6]: Ibid, at paras. 93 and 98-100. [^7]: Ibid, at para. 90, quoting R. v. Hawkins, [1996] 3 S.C.R. 1043](https://www.canlii.org/en/ca/scc/doc/1996/1996canlii154/1996canlii154.html), at para 75. [^8]: Ibid, at para. 49. [^9]: R. v. Saleh, 2013 ONCA 742, 303 C.C.C. (3d) 431. [^10]: R. v. Snyder, 2011 ONCA 445, 273 C.C.C. (3d) 211. [^11]: Ibid, at para. 15. [^12]: Later in the winter, after some of the snow in the area had melted, another officer went to the area and recovered the grey plastic bag containing the skeleton hoodie. [^13]: R. v. Khelawon, supra note 2, at para. 76. [^14]: R. v. Trieu (2005), 74 O.R. (3d) 481 (C.A.). [^15]: Ibid, at para. 56. [^16]: R. v. Trieu, supra note 14, at paras. 98-112.