ONTARIO

SUPERIOR COURT OF JUSTICE

CITATION: R.v. Bashamakh, 2015 ONSC 1631

COURT FILE NO.: CR-13-0124

DATE: 20150311

B E T W E E N:

HER MAJESTY THE QUEEN

R. Prihar, for the Crown/Applicant

• and -

SWALEH BASHAMAKH

S. Williams, for the Defendant/ Respondent

Defendant

HEARD: March 9, 10, 11, 2015

RULING ON KGB APPLICATION BROUGHT BY CROWN REGARDING ATIENNE FORREST

Skarica J.

Overview

[1] In March 2012 a CIBC and a Mac’s Milk Store were robbed by an unsophisticated drug addict. The Crown alleges that the accused was the driver who operated the getaway car. The accused’s friend, Atienne Forrest, was a passenger in the car and assisted in the robbery by being a lookout. The drug addict pled guilty and has already testified at this trial. The passenger Atienne Forrest was arrested and also pled guilty and gave a sworn statement. At this trial, Atienne Forrest has resiled from his sworn statement and has refused to adopt it in a cross-examination conducted by the Crown pursuant to s 9(2) of the Canada Evidence Act (CEA). The Crown now seeks to admit the sworn statement as proof of its contents pursuant to R vs, B.(K.G.) (1993), 1993 CanLII 116 (SCC), 79 CCC 3d 257 (S.C.C) (K.G.B)

BACKGROUND FACTS

[2] The accused faces two charges of robbery. The allegations are that:

(1) On March 3, 2012, the accused operated the getaway car during the course of a bank robbery done by Franklin Phillips at a CIBC at Rexdale Ave. in Toronto.

(2) On March 22, 2012, the accused again operated the getaway car during the course of a Mac’s Milk robbery, at Derry Road in Malton, done at knife point by the drug addict Franklin Phillips.

(3) The accused drove Franklin Phillips to the robberies for the purpose of Mr. Franklin Phillips stealing money which was to be paid to the accused and/or Atienne Forrest in return for crack cocaine.

(4) Atienne Forrest occupied the front passenger seat during the two robberies. His role was to act as a lookout and supply crack cocaine to Mr. Phillips. The accused and/or Mr. Forrest were to receive, in exchange for drugs, the stolen monies that were obtained by Mr. Phillips during the robberies.

[3] The robber, Franklin Phillips, pled guilty to these two robberies and testified at this trial and gave testimony largely consistent with the allegation outlined above. The front passenger, Atienne Forrest was also charged with these two robberies. On March 30, 2012 Mr. Forrest gave an inculpatory statement to the police admitting his involvement in the robberies, also largely consistent with the allegations outlined above save and except Mr. Forrest, did not make any admissions regarding the drugs for stolen monies aspect of the robberies, as testified to by the robber, Mr. Phillips.

[4] At his jury trial, Mr. Forrest challenged the admissibility of his inculpatory statement on the basis of voluntariness. On or about July 25, 2014 Justice Bielby ruled the statement voluntary and admissible. The accused changed his plea and pled guilty.

[5] An agreed statement of facts (ASF) was prepared by the Crown and Mr. Forrest’s counsel. Mr. Forrest took the stand and swore that the ASF was correct. The ASF is largely consistent with Mr. Forrest’s inculpatory statement made during the videotaped interview on March 30, 2012.

[6] At this trial, Mr. Forrest initially testified, in examination in chief done by Crown counsel that he and the accused did drive Mr. Phillips to the scene of the robberies but they were not aware that the robberies were to take place.

[7] The Crown, pursuant to the procedure outlined in R. vs. Coffin, (1956) 1956 CanLII 94 (SCC), 114 CCC 1(S.C.C) gave Mr. Forrest his ASF to read in order to refresh his memory.

[8] After reading the ASF, the witness continued to maintain he didn’t know about the plans to commit robberies, did not receive any monies, and didn’t know about the knife used at the Mac’s Milk Store robbery. Based on this new version of facts, Mr. Forrest was not guilty of any criminal offences at all. The Crown brought an application under s. 9(2) of the CEA with the intent of bringing a KGB application if the witness refused to adopt the contents of the sworn ASF.

[9] After providing defence counsel with an opportunity to cross-examine as to the circumstances under which the statement was made, I ruled that, (1) given the ASF was prepared by Crown and Defence Counsel for the purposes of a guilty plea and (2) read to and understood by Mr. Forrest and (3) was consistent with Mr. Forrest’s previous March 30 inculpatory statement (ruled voluntary and admissible by Justice Bielby) that the requirements of the Milgaard procedure as approved of by the Supreme Court of Canada in R v. McInroy, (1978) 1978 CanLII 175 (SCC), 42 CCC 2d 481(S.C.C) at p. 485-486 CCC. had been met and the Crown was permitted to cross-examine Mr. Forrest on his sworn ASF before the jury.

[10] The Crown cross-examined Mr. Forrest who continued to maintain that significant and large portions of the sworn ASF were incorrect. Basically, Mr. Forrest’s evidence was that he swore the ASF and pled guilty in order to get the case over with. Mr. Forrest refused to adopt the sworn ASF as being accurate. The Crown then brought this KGB application consistent with its original intention and the voir dire was continued in order to assess the admissibility of the ASF as substantive evidence of the truth of its contents.

LAW- THE HEARSAY RULES

[11] Hearsay evidence – an out of court statement tendered for the truth of its contents is – presumptively inadmissible – see R vs. Youvarajah, 2013 SCC 41, [2013] 2 SCR 720 at para 18, R. vs. Khelawon 2006 SCC 57, [2006] 2 SCR 787 at para 2.

[12] However, as with most rules in both life and law, there are exceptions to the rule. With hearsay, there are two principle exceptions:

1. “Traditional” exceptions based on common sense assumptions guaranteeing inherent trustworthiness because of the circumstances in which they were made i.e. dying declaration, declaration adverse in interest – see R v. Youvarajah at para 20;

2. A new revised principled approach was developed by the Supreme Court of Canada in the 1990s and accordingly is not so new anymore – see R vs. Khan, [1990] 25 SCR 531, R vs. Smith [1992] 2 SCR 2SCR, R vs. B (K.G.) (1993) 1993 CanLII 116 (SCC), 79 CCC 3d 257 S.C.C, [1973], SCR 740 (K.G.B);

3. Under the revised, principled approach, admissibility is done on a more flexible basis than the old rigid traditional rules. The trial judge’s role with the new flexible approach is as a gatekeeper. Flexibility does not mean everything goes in; there are rules that are both complex and nuanced that require a case by case examination;

4. The principled approach permits trial judges to admit hearsay evidence if it meets the twin threshold requirements of (a) necessity and (b) reliability;

5. Where, as here, a witness recants from a prior statement, necessity is established – see Youvarajah at para 22 and Khelawon at para.78;

6. Accordingly the focus before me is on threshold reliability. The trial judge, as evidentiary gatekeeper assesses threshold reliability of the hearsay statement. Even if necessity and reliability of the hearsay evidence is proven, the trial judge maintains discretion to exclude the evidence where the “prejudicial effect is out of the proportion to its “probative value”- see Youvarajah at para 23, Khelawon at para 3;

7. Once the statement is admitted, the decision as to ultimate reliability is with the jury – see Youvarajah at para 23, Khelawon at para 2;

8. Provided the threshold criteria of necessity and reliability are established, on an exceptional basis, a prior inconsistent statement is admissible for the truth of its contents – see Youvarajah at para 27;

9. There are generally two ways of satisfying threshold reliability :

(i) Procedural Reliability – there is a sufficient basis on which to assess the hearsay statement’s truth and accuracy, using substitutes for the typical adversarial process – the “KGB” procedure

(ii) Substantive Reliability – circumstances in which the statement was made provides guarantees that the statement is reliable or trustworthy – see R vs. Kanalalingam, 2014 ONCA 727, [2014] O.J. No 4946 (C.A), at para 31.

Law – Threshold Reliability

[13] In R v. B (K.G.) Mr. Justice Lamer outlined the procedure and tests for threshold reliability as follows at para 111-120:

The Voir Dire

111 Pursuant to the circumstantial guarantees of reliability described above, prior statements may be used as substantive evidence of their contents by the jury. The two-stage process by which this may be done must now be described. After the calling party invokes s. 9 of the Canada Evidence Act, and fulfils its requirements in the voir dire held under that section, the party must then state its intention in tendering the statement. If the party indicates that it wishes to use the statement only to impeach the credibility of the witness, that is the end of the matter as regards the reformed rule: the trial proceeds as it did under the orthodox rule, with the judge instructing the jury accordingly. If, however, the party gives notice that it will seek to make substantive use of the statement, the trial judge must continue the voir dire to satisfy him or herself on the appropriate measure (which I will discuss below) that these indicia of reliability, or acceptable substitutes, are present: the oath, affirmation, or solemn declaration will be proved, the person who administered the oath, affirmation, or solemn declaration will testify that he or she also administered the warning (or perhaps this could be incorporated into the oath, affirmation, or solemn declaration), and the videotape will be tendered into evidence, its authenticity sworn to, and, if the trial [page800] judge wishes, screened to ensure its veracity and integrity.

112 With respect to the burden of proof in the voir dire, ordinarily the trial judge should be satisfied that these indicia of reliability are established on the balance of probabilities, the normal burden resting upon a party seeking to admit evidence. This is no more than a corollary of the requirement that the prior statements must relate evidence which would have been admissible as the witness's sole testimony had he or she not recanted.

113 A different situation might exist where the prior statement reports an admission made by the accused. If the statement is not made to a person in authority no special burden is required, since the ordinary burden for the admission of evidence would have applied to the witness's testimony at trial had he or she not recanted. However, if the prior statement reports an admission of the accused made to a person in authority, the higher burden associated with the law relating to confessions may well apply. Such incidents will be rare, since persons in authority who receive statements in the course of their duties from accused persons will not often recant. Additionally, if an agent of the state elicits a statement from a detained accused, the case law developed under the Charter in this respect would have to be considered with respect to the burden during the voir dire.

114 As neither of these issues arise in this case (since the recanting witnesses were clearly neither persons in authority in relation to the accused, nor were they agents of the state when the accused made his admissions to them, nor was the accused detained), I would leave those rare and theoretical situations to be addressed when and if they arise.

[page801]

115 However, I would incorporate another aspect of the rule relating to confessions in the voir dire. Even where there has been a warning and oath administered, and the statement videotaped, or sufficient substitutes established, the trial judge will still have the discretion to refuse to allow the jury to make substantive use of the statement. Prior statements share many characteristics with confessions, especially where police investigators are involved. Proponents of the orthodox rule voice the concern that malign influences on the witness by police may precede the making of the statement and shape its content, in the same way that confessions may be suspect if coerced by police investigators. That is, it still may be the case that the oath and videotape, and the acknowledgement of the warning, were made under circumstances that make them suspect. For this reason, the test developed by this Court for the admission of confessions is well-suited to making a threshold determination of whether the circumstances under which the statement was made undermine the veracity of the indicia of reliability.

116 The classic statement of the first part of the confession rule appears in Ibrahim v. The King, [1914] A.C. 599 (P.C.), at p. 609:

It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him unless it is shewn by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority.

Ibrahim was first adopted by this Court in Prosko v. The King (1922), 1922 CanLII 584 (SCC), 63 S.C.R. 226, and was extended in decisions such as Horvath v. The Queen, 1979 CanLII 16 (SCC), [1979] 2 S.C.R. 376, in which Beetz J. wrote (at pp. 424-25):

Furthermore, the principle which inspires the rule remains a positive one; it is the principle of voluntariness. The principle always governs and may justify an [page802] extension of the rule to situations where involuntariness has been caused otherwise than by promises, threats, hope or fear, if it is felt that other causes are as coercive as promises or threats, hope or fear and serious enough to bring the principle into play.

117 I would apply this test to prior statements. The trial judge must satisfy him or herself (again, in the majority of cases on the balance of probabilities) on the voir dire that the statement was not the product of coercion of any form, whether it involves threats, promises, excessively leading questions by the investigator or other person in a position of authority, or other forms of investigatory misconduct.

118 I would add another element to the trial judge's inquiry to address situations where the first factor might be satisfied, but there are other aspects of police conduct which militate against rewarding that conduct by admitting the evidence. In Rothman v. The Queen, 1981 CanLII 23 (SCC), [1981] 1 S.C.R. 640, at p. 696, I wrote that even if the Ibrahim test was satisfied to make a confession admissible, such a confession "shall nevertheless be excluded if its use in the proceedings would, as a result of what was said or done by any person in authority in eliciting the statement, bring the administration of justice into disrepute."

119 It must be stressed that the trial judge is not making a determination on the voir dire as to the ultimate reliability and credibility of the statement. As I have indicated, that is a matter for the trier of fact. The trial judge need not be satisfied that the prior statement was true and should be believed in preference to the witness's current testimony. This distinction is also derived from the law relating to confessions. In Piché v. The Queen, 1970 CanLII 182 (SCC), [1971] S.C.R. 23, at pp. 25-26, Cartwright C.J. noted that:

The main reason assigned for the rule that an involuntary confession is to be excluded is the danger that it may be untrue but, as has been recently reasserted by [page803] this Court in DeClerq v. The Queen [1968 CanLII 24 (SCC), [1968] S.C.R. 902], the answer to the question whether such a confession should be admitted depends on whether or not it was voluntary not on whether or not it was true.

Similarly, in Rothman, I wrote, at p. 691, that

a statement before being left to the trier of fact for consideration of its probative value should be the object of a voir dire in order to determine, not whether the statement is or is not reliable, but whether the authorities have done or said anything that could have induced the accused to make a statement which was or might be untrue. It is of the utmost importance to keep in mind that the inquiry is not concerned with reliability but with the authorities' conduct as regards reliability.

120 Thus, to summarize the discussion of the voir dire: in the part of the voir dire addressing the new rule, the trial judge must first satisfy him or herself that the indicia of reliability necessary to admit hearsay evidence of prior statements -- a warning, oath, solemn affirmation, or solemn declaration, and videotape record, or sufficient substitutes -- are present and genuine. If they are, he or she must then examine the circumstances under which the statement was obtained, to satisfy him or herself that the statement supported by the indicia of reliability was made voluntarily if to a person in authority, and that there are no other factors which would tend to bring the administration of justice into disrepute if the statement was admitted as substantive evidence. In most cases, as in this case, the party seeking to admit the prior inconsistent statements as substantive evidence will have to establish that these requirements have been satisfied on the balance of probabilities. The trial judge is not to decide whether the prior inconsistent statement is true, or more reliable than the present testimony, as that is a matter for the trier of fact. Once this process is complete, and all of its constituent elements satisfied, the trial judge need not issue the standard limiting instruction to the jury, but may instead tell the jury that they may take the statement as substantive evidence of its contents, or, if he or she is sitting alone, make substantive use of the statement, giving the evidence the appropriate weight after taking into account all of the circumstances. [page804] In either case, the judge must direct the trier of fact to consider carefully these circumstances in assessing the credibility of the prior inconsistent statement relative to the witness's testimony at trial. For example, where appropriate the trial judge might make specific reference to the significance of the demeanour of the witness at all relevant times (which could include when making the statement, when recanting at trial, and/or when presenting conflicting testimony at trial), the reasons offered by the witness for his or her recantation, any motivation and/or opportunity the witness had to fabricate his or her evidence when making the previous statement or when testifying at trial, the events leading up to the making of the first statement and the nature of the interview at which the statement was made (including the use of leading questions, and the existence of pre-statement interviews or coaching), corroboration of the facts in the statement by other evidence, and the extent to which the nature of the witness's recantation limits the effectiveness of cross-examination on the previous statement. There may be other factors the trier of fact should consider, and the trial judge should impress upon the trier of fact the importance of carefully assessing all such matters in determining the weight to be afforded prior inconsistent statements as substantive evidence.

[14] The Ontario Court of Appeal in R vs. Kanagalingam, 2014 ONCA 7271 [2014] O.J. No. 4946, summarizes the procedure as follows at para 31-34 and para 44-46:

31 There are generally speaking two ways of satisfying threshold reliability: either the trier of fact has a sufficient basis on which to assess the hearsay statement's truth and accuracy, using substitutes for the typical adversarial process (procedural reliability), or the circumstances in which the statement was made provide guarantees that the statement is reliable or trustworthy (substantive reliability): R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at paras. 62-63; R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 30.

32 In K.G.B., at pp. 795-96, the Supreme Court of Canada recognized three indicators of threshold reliability that would generally justify the admission of a statement: (i) the statement is made under oath or affirmation following a warning on the significance of the oath and the availability of sanctions for giving a false statement; (ii) the statement is videotaped in its entirety; and (iii) the opposing party has a full opportunity to cross-examine the witness respecting the statement. These three indicators provide a means by which the trier of fact can test the hearsay statement.

33 Here, Selvaraj, Indrakumaran and Ravindran were each represented by counsel who assisted in the preparation of the statements. Each reviewed their respective statements with counsel prior to their guilty plea hearing. Each testified under oath, affirmation or a promise to tell the truth at their guilty pleas that the contents of their agreed statement of fact were true. They did not simply state themselves, or through counsel, that the facts were "substantially true"; indeed, Indrakumaran and Ravindran testified that they were completely accurate, "100 per cent". The judge hearing their guilty pleas accepted, based on their assurances, that the pleas were voluntary, and on their testimony, that they were founded on evidence that was true and accurate. Finally, they were available for cross-examination not only (in the case of Indrakumaran and Ravindran) at the appellant's preliminary inquiry but -- most significantly -- at the appellant's trial, where their conflicting evidence and their explanations for changing their testimony could be tested. There was little need, therefore, for the taking of the statements to have been videotaped.

34 In short, the threshold reliability requirement "[was] met on the basis that the trier of fact [had] a sufficient basis to assess the statement's truth and accuracy" and there was therefore "no need to inquire further [at that stage] into the likely truth of the statement": Khelawon, at para. 92.

44 Here, the fact that the statements of Messrs. Selvaraj, Indrakumaran and Ravindran were not videotaped is of less importance, as is the inability to test their choice of words in the agreed statements of fact. They all testified as to the truth of their statements under oath, affirmation or a promise to tell the truth. They were all available for cross-examination to test their choice of words. At least one judge -- the judge taking the guilty pleas -- had not expressed any concern about their demeanour and was satisfied as to the voluntariness of the pleas and their statements. The fact that the statements had been crafted with the assistance of their counsel is at least one circumstance providing some indication of threshold reliability.

45 Most significant, however, is the fact that all three witnesses were available for full cross-examination at the appellant's trial. They had each given an explanation for their statements and their guilty pleas and for their different testimony at trial. Thus their respective stories could readily be tested.

46 These factors distinguish Youvarajah from the present appeal, in my view. I do not understand Youvarajah to stand for the proposition that there is a per se rule requiring the exclusion of K.G.B. statements at the threshold stage where there are circumstances that may "undermine the veracity of the indicia of reliability." It is a matter of discretion, and each case must be determined in its own context.

[15] In R. vs. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787 SCJ 57, the Supreme Court of Canada confirmed that corroboratory evidence can be considered by the trial judge, as gate keeper in assessing threshold reliability. The Court held at para 93-100:

93 As I trust it has become apparent from the preceding discussion, whether certain factors will go only to ultimate reliability will depend on the context. Hence, some of the comments at paras. 215 and 217 in Starr should no longer be followed. Relevant factors should not be categorized in terms of threshold and ultimate reliability. Rather, the court should adopt a more functional approach as discussed above and focus on the particular dangers raised by the hearsay evidence sought to be introduced and on those attributes or circumstances relied upon by the proponent to overcome those dangers. In addition, the trial judge must remain mindful of the limited role that he or she plays in determining admissibility - it is crucial to the integrity of the fact-finding process that the question of ultimate reliability not be pre-determined on the admissibility voir dire.

94 I want to say a few words on one factor identified in Starr, namely "the presence of corroborating or conflicting evidence" since it is that comment that appears to have raised the most controversy. I repeat it here for convenience:

Similarly, I would not consider the presence of corroborating or conflicting evidence. On this point, I agree with the Ontario Court of Appeal's decision in R. v. C. (B.) (1993), 1993 CanLII 8564 (ON CA), 12 O.R. (3d) 608; see also Idaho v. Wright, 497 U.S. 805 (1990). [para. 217]

95 I will briefly review the two cases relied upon in support of this statement. The first does not really provide assistance on this question and the second, in my respectful view, should not be followed.

96 In R. v. C.(B.) (1993), 1993 CanLII 8564 (ON CA), 12 O.R. (3d) 608 (C.A.), the trial judge, in convicting the accused, had used a co-accused's statement as evidence in support of the complainant's testimony. The Court of Appeal held that this constituted an error. While a statement made by a co-accused was admissible for its truth against the co-accused, it remained hearsay as against the accused. The co-accused had recanted his statement at trial. His statement was not shown to be reliable so as to be admitted as an exception to the hearsay rule against the accused. Therefore, this case is of no assistance on the question of whether supporting evidence should be considered or not in determining hearsay admissibility. It simply reaffirms the well-established rule that an accused's statement is only admissible against its maker, not the co-accused.

97 Idaho v. Wright, 497 U.S. 805 (1990), is more on point. In that case, five of the nine justices of the United States Supreme Court were not persuaded that "evidence corroborating the truth of a hearsay statement may properly support a finding that the statement bears 'particularized guarantees of trustworthiness'" (p. 822). In the majority's view, the use of corroborating evidence for that purpose "would permit admission of a presumptively unreliable statement by bootstrapping on the trustworthiness of other evidence at trial, a result we think at odds with the requirement that hearsay evidence admitted under the Confrontation Clause be so trustworthy that cross-examination of the declarant would be of marginal utility" (p. 823). By way of example, the majority observed that a statement made under duress may happen to be true, but evidence tending to corroborate the truth of the statement would be no substitute for cross-examination of the declarant at trial. The majority also raised the concern, arising mostly in child sexual abuse cases, that a jury may rely on the partial corroboration provided by medical evidence to mistakenly infer the trustworthiness of the entire allegation.

98 In his dissenting opinion, Kennedy J., with whom the remaining three justices concurred, strongly disagreed with the position of the majority on the potential use of supporting or conflicting evidence. In my view, his reasons echo much of the criticism that has been voiced about this Court's position in Starr. He said the following:

I see no constitutional justification for this decision to prescind corroborating evidence from consideration of the question whether a child's statements are reliable. It is a matter of common sense for most people that one of the best ways to determine whether what someone says is trustworthy is to see if it is corroborated by other evidence. In the context of child abuse, for example, if part of the child's hearsay statement is that the assailant tied her wrists or had a scar on his lower abdomen, and there is physical evidence or testimony to corroborate the child's statement, evidence which the child could not have fabricated, we are more likely to believe that what the child says is true. Conversely, one can imagine a situation in which a child makes a statement which is spontaneous or is otherwise made under circumstances indicating that it is reliable, but which also contains undisputed factual inaccuracies so great that the credibility of the child's statements is substantially undermined. Under the Court's analysis, the statement would satisfy the requirements of the Confrontation Clause despite substantial doubt about its reliability. [pp. 828-29]

99 Kennedy J. also strongly disagreed with the majority's view that only circumstances surrounding the making of the statement should be considered:

The [majority] does not offer any justification for barring the consideration of corroborating evidence, other than the suggestion that corroborating evidence does not bolster the "inherent trustworthiness" of the statements. But for purposes of determining the reliability of the statements, I can discern no difference between the factors that the Court believes indicate "inherent trustworthiness" and those, like corroborating evidence, that apparently do not. Even the factors endorsed by the Court will involve consideration of the very evidence the Court purports to exclude from the reliability analysis. The Court notes that one test of reliability is whether the child "use[d] ... terminology unexpected of a child of similar age." But making this determination requires consideration of the child's vocabulary skills and past opportunity, or lack thereof, to learn the terminology at issue. And, when all of the extrinsic circumstances of a case are considered, it may be shown that use of a particular word or vocabulary in fact supports the inference of prolonged contact with the defendant, who was known to use the vocabulary in question. As a further example, the Court notes that motive to fabricate is an index of reliability. But if the suspect charges that a third person concocted a false case against him and coached the child, surely it is relevant to show that the third person had no contact with the child or no opportunity to suggest false testimony. Given the contradictions inherent in the Court's test when measured against its own examples, I expect its holding will soon prove to be as unworkable as it is illogical.

The short of the matter is that both the circumstances existing at the time the child makes the statements and the existence of corroborating evidence indicate, to a greater or lesser degree, whether the statements are reliable. If the Court means to suggest that the circumstances surrounding the making of a statement are the best indicators of reliability, I doubt this is so in every instance. And, if it were true in a particular case, that does not warrant ignoring other indicators of reliability such as corroborating evidence, absent some other reason for excluding it. If anything, I should think that corroborating evidence in the form of testimony or physical evidence, apart from the narrow circumstances in which the statement was made, would be a preferred means of determining a statement's reliability for purposes of the Confrontation Clause, for the simple reason that, unlike other indicators of trustworthiness, corroborating evidence can be addressed by the defendant and assessed by the trial court in an objective and critical way. [References omitted; pp. 833-34.]

100 In my view, the opinion of Kennedy J. better reflects the Canadian experience on this question. It has proven difficult and at times counterintuitive to limit the inquiry to the circumstances surrounding the making of the statement. This Court itself has not always followed this restrictive approach. Further, I do not find the majority's concern over the "bootstrapping" nature of corroborating evidence convincing. On this point, I agree with Professor Paciocco who commented on the reasoning of the majority in Idaho v. Wright as follows (at p. 36):

The final rationale offered is that it would involve "bootstrapping" to admit evidence simply because it is shown by other evidence to be reliable. In fact, the "bootstrapping" label is usually reserved to circular arguments in which a questionable piece of evidence "picks itself up by its own bootstraps" to fit within an exception. For example, a party claims it can rely on a hearsay statement because the statement was made under such pressure or involvement that the prospect of concoction can fairly be disregarded, but then relies on the contents of the hearsay statement to prove the existence of that pressure or involvement: Ratten v. The Queen, [1972] A.C. 378. Or, a party claims it can rely on the truth of the contents of a statement because it was a statement made by an opposing party litigant, but then relies on the contents of the statement to prove it was made by an opposing party litigant: see R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869. Looking to other evidence to confirm the reliability of evidence, the thing Idaho v. Wright purports to prevent, is the very antithesis of "bootstrapping".

Application to this Case

Threshold Reliability - Procedural Reliability

[16] On the evidence adduced at the voir dire, I conclude that the following indicators of procedural reliability have been established:

(1) The Agreed Statement of Facts (ASF) was sworn to by Mr. Forrest at his guilty plea proceedings and was given under oath,

(2) The ASF was signed, sworn to during courtroom proceedings which was audiotaped in its entirety and produced as an exhibit,

(3) Defence Counsel has a full opportunity to cross-examine the ASF both at a voir dire and at trial before the jury,

(4) Mr. Forrest was represented by Counsel at his trial and at the guilty plea proceedings,

(5) Mr. Forrest’s counsel read the ASF to him prior to Mr. Forrest’s guilty plea. Mr. Forrest had input into what went into the ASF. He spoke with counsel about what should go in and some things were removed before the ASF was finalized,

(6) He fully understood what was in the ASF and he knew he could change the content if he wished,

(7) He pleaded guilty because he didn’t want to be found guilty and do more time. He was aware he could choose to continue to plead not guilty,

(8) On the guilty plea proceedings, each and every one of the 12 paragraphs of the ASF was read to Mr. Forrest, while he was under oath. Mr. Forrest agreed that each and every paragraph was correct. Mr. Forrest was asked if there was anything he wished to change and he said no. He then signed the ASF and it was entered as Ex. 1 in the guilty plea proceeding,

(9) In response to questions asked by his lawyer, Mr. Forrest agreed that he entered his plea voluntarily and was giving up his right to a jury trial. He agreed that he understood that the Crown and defence would be asking for a certain sentence but it was up to the judge to make the final determination.

[17] Accordingly, this case is very similar to the situation in R vs. Kanagalingam where the witnesses pled guilty based on agreed statements of facts prepared by their lawyer in consultation with each other. In Kanagalingam, the witnesses, as well, confirmed the truth of those statements under oath at the time of their guilty pleas.

[18] The comments made by the Ontario Court of Appeal in Kanagalingam at paragraph 33 (reproduced above) are applicable to the case before me.

[19] Given the considerations outlined above, it is my opinion that the conditions of procedural threshold reliability have been met and the sworn ASF is admissible on that basis. In this procedural analysis, I am not required to inquire into the truth of the statement – see Kanagalingam at para 34.

[20] Although it may not be necessary given my conclusion thus far, I propose to consider the issue of substantive reliability as well.

Substantive Reliability

[21] The two principle ways of showing threshold reliability are not mutually exclusive – R v. Devine, 2008 SCC 36, [2008] 2 SRR 283 at para 22 and Youvarajah at para 30.

[22] The ASF was prepared and sworn to after Mr. Forrest’s inculpatory statement on March 30/2012 was ruled admissible and voluntary by Justice Bielby on July 25, 2014. The March 30, 2012 video statement of Mr. Forrest was played before Mr. Forrest at the voir dire, conducted before me. A transcript was entered at the voir dire as an exhibit in the taped interview. Officer Scott reveals very little of what evidence the police possessed until late in the interview, Officer Scott shows some photos of the robberies to the witness.

[23] In Khelawon, the Supreme Court of Canada indicates that I am permitted to look at evidence of corroboration in the threshold enquiry of admissibility.

[24] In Khelawon, the Supreme Court of Canada made this observation at para 86 & 87:

86 In B. (K.G.), the Court held that a prior inconsistent statement is sufficiently reliable for substantive admission if it is made in circumstances comparable to the giving of in-court testimony. In U. (F.J.), the reliability requirement was met rather by showing that there was no real concern about whether the complainant was speaking the truth in her statement to the police. The striking similarities between her statement and the independent statement made by her father were so compelling that the only likely explanation was that they were both telling the truth. Again here, the criteria of necessity and reliability intersect. In the interest of seeking the truth, the very high reliability of the statement rendered its substantive admission necessary.

87 Again here, Lamer C.J. added the following proviso (at para. 49):

I would also highlight here the proviso I specified in B. (K.G.) that the trial judge must be satisfied on the balance of probabilities that the statement was not the product of coercion of any form, whether involving threats, promises, excessively leading questions by the investigator or other person in a position of authority, or other forms of investigatory misconduct.

6.2.4.5 R. v. Hawkins, 1996 CanLII 154 (SCC), [1996] 3 S.C.R. 1043

[25] I have prepared a chart summarizing the evidence contained in the sworn ASF with Mr. Forrest’s March 30 police statement and other evidence produced at trial. The chart is reproduced here as follows:

AF = Atienne Forrest; SB= Swaleh Bashamakh; FP= Franklin Phillips

ASF

March 30 Statement 2012 of AF

Trial Evidence of Franklin Phillips

Other Trial Evidence

• Para. 1 – AF; SB; FP talked about a robbery

• AF and SB talked about a demand note

• AF and SB picked up FP at his home

• SB was driving

• SB drove to CIBC at Rexdale

• AF was front passenger

• Silver Honda Civic owned by FP was driven by SB

• P.17 – AF was there

• P.18 – They picked him up in afternoon

• P.19 – SB was driving and drove to CIBC at Humber

• P.32 – AF agrees that FP phoned beforehand

• he wanted to do a bank

• The plan was that FP needed more drugs

• SB picked him up and drove him to the CIBC at Rexdale and Humber

• SB suggested it

• They drove in FP’s silver Honda Civic

• AF and SB were with him

Para. 2 – AF and SB parked Civic at CIBC parking lot

• FP went inside and gave note

• FP got approx. $900

• FP left and went to parking lot

• P.19 – he said he got $800, $500

• P.29 – AF was sitting outside watching for police, “keeping six”

• FP slipped a note to the teller

• – “Give me money, this is a robbery”

• FP had no weapons

• FP got $800, $900

Danish Ahmed was working at CIBC on Mar. 3.

• A man slipped him a note indicating a robbery
• $700 - $900 was taken

Para. 3 – AF and SB waited in parking lot and drove FB away

• FP gave money to SB and AF

• FP dropped off at home

• AF received $100

• P. 23 – AF got $100 out of $800

• P. 27 – SB told AF that FP going to likely rob CIBC

• He had gloves

• P. 27 they were picking up a guy who robs and then getting a piece

• P. 44 – AF got 2 x $50

• P. 55 – most of bills were $20s and some $10s

• FP gave all the money to SB

• AF took out crack cocaine and gave FP $400 worth of cocaine

• Danish Ahmed gave $700 - $900 in $5, $10 and $20 bills

• Ex. 1 – 5 provide further details of the CIBC robbers confirming FP as the robber

• Para. 4 – March 21, 2012 FP phoned SB and AF

• They discussed another robbery

• SB and AF picked up FP at home after midnight to find a place to rob

• AF was in passenger seat

• P. 6 – FP phones

• Says he needs to rob a Mac’s for money

• P. 6 – Need to get out of region

• P. 20 – AF knew about robbing Mac’s

• P. 9 – SB was driving

• AF was in front passenger seat

• P. 10 – FP in back

• FP lives at 242 John Garland

• P. 12 – FP says he needs to rob a Mac’s

• They pick him up at home

• FP phones SB

• He wants drugs

• SB says he needs money

• SB picks up FP

• AF was in the passenger seat

• They look around for a place to rob

• FP lives at 242 John Garland

Para. 5 – They looked for a place to rob

• They scouted one Mac’s Milk but decided against it

• At Mac’s Milk at 3427 Derry Road, they saw one employee, no customers and empty parking lot

• P. 14 – at second Mac’s just one worker

• They let FP out

• The robbery was at 3427 Derry Road

• FP didn’t want to do the first location

• It had sliding doors

• They settled on the Mac’s Milk (see red dot in Ex. 7) on Derry and Goreway

• They looked into the store

• There was only one person there

Para. 6 – 1:24 a.m. March 22

• FP approaches Malhotra

• Gives note

• Brandishes knife

• FP receives $400 from till

• FP goes outside

• Phones SB and AF

• Five minutes later they pick him up

• P. 13 – FP said he had a weapon

• P. 7 – we let FP out

• 10 – 15 minutes later FP phoned

• He robbed the Mac’s

• We picked him up

• P. 51 – FP phoned for them to pick him up and 10 minutes later police stopped them

• FP had a knife and a note “Give me the money; it’s a robbery”

• It was late 2 – 3 or 3 – 4 a.m.

• FP got $500 -$600 and took off

• The car was not there

• FP phoned SB and they picked him up

• Kashish Malhotra was working at the Mac’s Milk

• A man brandishing a small knife handed him a note demanding money

• He gave the robber $200 - $ 250 but it could be more

• Ex. 6(a) and (b) contain evidence and photos of the robbers

Para. 7 – AF was aware that FP had a knife

• P. 13 – FP said he had a weapon

• P. 46 – FP knew about note and knife

• FP had a knife

• Ex. 6(a) and (b) confirm photos Malhotra evidence of knife

Para 8 – as driving away, three parties aware they are being followed

• AF asks FP for the money

• FP says no

• Police stop car

• All three provide names to Peel Officer

• They were then allowed to leave

• P 16 – FP had knife, note, and money in pocket

• AF asked for money

• FP said no

• P. 22 FA would not give the money to AF as they got pulled over

• P. 7, 14 – after Mac’s robbed, police officer stopped them and got their names and let them go

• P. 14 – officer said there was a robbery

• The police stop them as they were leaving the area

• SB asks for the money but FP says no, he did the job

• FP put the knife under the passenger seat and the money in the back seat

• The police got their IDs and let them go

• PC McCulloch heard the radio call regarding the robbers. He stopped the Honda Civic two blocks from Mac’s

• Got ID from SB, AF and FP and then let them go

• He reviewed the Ex. 6 photos and identified FP as the robber

Para. 9 – while in Civic FP gives money from Mac’s robbery to SB and AF

• FP dropped off at home

• P. 21 – FP gave $400 from Mac’s to SB

• P. 54 – after dropping FP off at Mac’s Milk, they were “gonna” leave him

• He was taking too long

• FP got tens and fives in the Mac’s Milk robbery

• FP gave SB the money

• AF gave FP crack cocaine

• The Honda Civic had Ontario licence GHHS )21 and was registered to FP

Para. 10 – March 22 evening

• AF and SB pick up FP and drive to Woodbine Centre to buy phone in FP’s name

• While inside, FP and SB were arrested at 8:55 p.m. by Peel Police

• P. 23 – AF was with them at time of arrest but got away

• P. 36 – SB was going to get a phone and put it in FP’s name

• P. 36 – SB was going to use money from Mac’s robbery

• Later that day at 8:30 p.m. SB picked up FP and drove to Woodbine Mall

• SB wanted to get a phone but put it in FP’s name

• FP and SB were arrested

• Detective Scott and others followed the Honda Civic from 242 John Garland Street.

• He followed the car to Woodbine Mall where SB and FP were arrested

• Seized from SB was $490 (see Ex. 8)

Para. 11 – AF was arrested at home in Toronto at 9:55 a.m. on March 30, 2012

• AF given rights to counsel
• AF taken to 21 Division

DVD

• P. 2 – interview at Room 1, CIB, 21 Division
• P. 2 – AF has been arrested for 2 x robbery and given rights to counsel

Para. 12 – AF provides audio and video statement on March 30, 2012 and admits to involvement in two robberies

• P. 42 – they had a plan

• It’s not a bad plan because FP and SB taking less risk

• P. 43 – 49 – they were dropping off and picking him up after the robberies

• P. 49 – the only reason they were hanging with FP was to go to do robberies

• P. 52 Mac’s photos show black leather jacket of FP

• The plan was that FP was doing the robberies

• FP gave SB the money and then AF gave FP crack cocaine

[26] An analysis of the chart above reveals that the sworn ASF is corroborated by:

1. The March 30, 2012 police video statement given by Mr. Forrest;

2. The trial evidence of Mr. Phillips. The only real difference is that Mr. Phillips puts in the added detail of money being given over in exchange for drugs;

3. The remainder of the trial evidence. Other than perhaps the testimony of Mr. Phillips regarding the drugs for money motive, there are no serious contradictions between the sworn ASF and Mr. Forrest’s own police video statement and all of the evidence, adduced at the trial before me.

[27] In essence, the sworn ASF is a concise summary of Mr. Forrest’s videotaped statement of his March 30, 2012 video statement. The details of the March 30, 2012 statement are confirmed by the evidence adduced at this trial. Mr. Forrest at this voir dire testified that he was coached by the police as to what to say before he gave his March 30, 2012 statement. For reasons to be discussed later, I find Mr. Forrest not to be a credible witness and I further find this explanation not to be believable.

[28] Accordingly, I find that on March 30, 2012, Mr. Forrest, upon his arrest, would not have been able to give such exact and accurate details of these two robberies unless he in fact participated in the manner he indicated. Further, in re-examination, the Crown played to Mr. Forrest, an excerpt of the video statement, where at 10:57 a.m., where no police are present and before the interview begins, Mr. Forrest says to himself “I was only there for two of them.”

[29] As indicated in Khelawon, at para 86, the reliability requirement can be met by showing that there is no real concern about whether Mr. Forrest was telling the truth in his sworn ASF. The striking similarities between the sworn ASF, the March 30 video statement and all of the rest of the trial evidence are so compelling that the only likely explanation is that the trial evidence and the sworn ASF represents the truth. In the interest of truth, the high reliability of the sworn ASF renders its substantive admission necessary.

[30] Khelawon also indicates at paragraph 87, that I must be satisfied on the balance of probabilities that the statement was not the product of coercion of any form, whether involving threats, promises, excessively leading questions by the investigator or other person in authority or other forms of investigatory misconduct.

[31] Mr. Forrest at this voir dire says the police arrested him at 9 a.m. Officer Scott coached him as to what to say. Mr. Forrest testified he was told that the police, if he co-operated, would release him on a promise to appear. If they did not release him, they would wreck his place during a search of the premises. He also was told not to contact a lawyer.

[32] The video statement starts at 11:03 a.m. and the interview regarding the robberies lasts until approximately 11:51 a.m. It is approximately 55 pages in length. I note that at pages 2-3, Mr. Forrest was given his rights to counsel and the standard police caution. The statement lasts for approximately one hour and in that hour, over 55 pages of transcript, Mr. Forrest, as analyzed previously, gives intimate details of the offences that has been corroborated in large part at this trial conducted years later. There is absolutely no evidence of coaching in the video. Mr. Forrest was arrested at 9 a.m., he was just 18 years old with no criminal record. For him to be coached in this stressful situation and give back a litany of details, all later corroborated years later, defies belief. I find that this evidence is illogical and not believable on its face. My impression of Mr. Forrest is that he is not the sharpest pencil in the drawer; defence counsel conceded that he is not the brightest.

[33] The reality is that Mr. Forrest at the voir dire testified under oath over two days, that his statement was untrue and was coerced because it was in his interest to have the statement ruled involuntary. Once the trial judge rejected his evidence; and it was in his interest to plead guilty and admit the truth of the statement and the ASF, he without hesitation, changed his evidence under oath and swore to the truth of the ASF. He is not a credible or reliable witness. I find that his sworn testimony is worthless unless it is corroborated elsewhere. The chart I have prepared establishes that the ASF that he swore to, is indeed substantially corroborated by the evidence at this trial.

[34] As defence counsel submitted, he bends with whatever direction as suits him.

[35] The circumstances leading up to the preparation and swearing of the ASF are as follows:

1. Mr. Forrest represented by counsel, conducted a voir dire into the voluntariness of the March 30, 2012 statement on July 23-24, 2014.

2. Mr. Forrest testified during the voir dire that the statement was untrue; he had been coached and threatened (by a search of his home and they would wreck it) and offered an inducement of a Promise to Appear release if he repeated to the officers in the video statement their versions of events of these robberies.

3. Justice Bielby ruled the inculpatory statement voluntary on July 25, 2015 indicating he rejected Mr. Forrest’s evidence at the voir dire.

4. According to Mr. Forrest, for a period of between 10-20 minutes, his counsel reviewed a draft ASF with Mr. Forrest. Mr Forrest was involved in the drafting of the contents. Some things were removed – i.e. the drugs for money aspect of the crimes. The ASF was read to him by Counsel. Mr. Forrest understood his contents. The guilty plea transcript indicates that Justice Bielby provided his ruling when court opened in the morning. At 10:58 a.m. the jury were discharged. The court came back after lunch hour in the afternoon and the plea was taken. I find that Mr. Forrest had hours to review the ASF and not ten minutes.

5. Mr. Forrest’s motive in pleading guilty, signing and swearing the ASF and agreeing to be a witness in the future was that he “didn’t want to do more time.”

6. Defence counsel suggests that independent counsel should have provided a second opinion. I am unaware of any authority requiring that and it is my opinion that trial counsel’s advice is sufficient.

7. In the guilty plea proceedings at page 12-13, Mr. Forrest indicates his guilty plea is voluntary; he is giving up his right to a jury trial, he understands that while Counsel for both the Crown and defence will be asking the court to consider a sentence, it is up to the judge to make the final determination of what his sentence will be.

8. The sentencing took place 5 months later and no attempts were made to strike the plea.

9. There is absolutely no evidence of any coercion or improper conduct by anyone.

[36] In summary therefore, Justice Bielby, after conducting a voir dire, found the March 30, 2012 statement to be voluntary and admissible. The ASF was prepared by Mr. Forrest’s counsel. Mr. Forrest read and understood it. The guilty plea transcript clearly indicates that Mr. Forrest’s guilty plea was voluntary and he was aware of its consequences and that his ultimate sentence would be in the court’s discretion. The accused swore under oath to the accuracy of each and every paragraph of the ASF when it was read to him by the Crown. The evidence adduced at the guilty plea proceedings and the evidence adduced at this voir dire satisfies me that the sworn ASF was not the product of coercion or any other form of improper conduct by any one. The threshold requirements of necessity and reliability have been met.

[37] Accordingly, in the result, I find that the ASF, as signed and sworn to in the guilty plea proceedings as well as the audio tape and transcript of the guilty plea proceedings is substantively admissible in these proceedings as proof of the truth of its contents.

Justice Skarica

Released: March 11, 2015

COURT FILE NO.: CR-13-0124

DATE: 20150311

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Crown/Applicant

• and –

SWALEH BASHAMAKH

Defendant/Respondent

REASONS FOR JUDGMENT

Justice Skarica

Released: March 11, 2015