CITATION: R. v. Keene, 2015 ONSC 3832

BARRIE COURT FILE NO.: 12-220

DATE: 20150612

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ANDREW ROBIN KEENE

Defendant

M. Flosman and S. Tarcza, for the Crown

M. Eisen and M. Howatt, for the Defendant

HEARD: June 12, 2015

RULING RE DEFENCE APPLICATION

MULLIGAN J.:

[1] Andrew Keene was arrested on October 20, 2011. He was interviewed by Det. Const. Brett Carleton at the Barrie Police station. The interview was video-recorded and transcribed. That transcription was filed as an exhibit on this voir dire.

[2] The Crown does not propose to call Officer Carleton with respect to this interview. The Crown submits that he will be called to give evidence with respect to other aspects of the arrest. Prior to this statement, Mr. Keene made various statements to undercover officers, including P.S. Those statements have been filed as exhibits by way of audio recordings and transcripts. In addition, Officer P.S. gave evidence and was cross-examined by the defence with respect to these statements.

[3] The defence seeks to introduce a few distinct portions of the interview on the basis that some of Mr. Keene’s statements tend to amplify what he said earlier to the undercover officer. The defence does not undertake to call evidence.

[4] The particular passages sought to be introduced follow Officer Carleton’s identification to Mr. Keene about the things he told C. and P. (undercover officers). The officer concluded by saying, “Andrew, you stop and think about all those things that you’ve told C. and P.. All those things that were recorded and they’re gonna be played back.” And Mr. Keene replied, “And how much of it was fact?” The officer replied, “Well, I don’t know. There you go, you tell me. Why wasn’t it fact?” Mr. Keene responded, “If somebody tells you you’re a liability and is hinting they’re gonna kill you, you’re gonna tell them anything.”

[5] In reply, the Crown opposes the application. This is not a case where the Crown intends to introduce the statement to show inculpatory statements while excluding exculpatory statements, often referred to as a mixed statement. The Crown’s position is that these utterances are highly prejudicial to the Crown’s case and have limited probative value. The Crown suggested Mr. Keene is lying to the police and the reliability of these utterances is highly questionable. The utterances, if introduced in this fashion, prevent the Crown from cross-examining Mr. Keene, furthering the unfairness to the Crown. The Crown submits that Mr. Keene has a pathway to introduce this evidence and that is by testifying on his own behalf.

[6] In the alternative, the Crown submits that if the evidence is introduced in this fashion, the Crown ought to have a reasonable opportunity to elicit further evidence from the transcript as to other utterances by Mr. Keene.

Analysis

[7] It is not disputed by counsel that prior consistent statements by an accused are generally inadmissible. As such, they are hearsay statements and whether or not they are made under oath, there was no opportunity for cross-examination at the time of the utterance. As Justice David Paciocco noted in his recent article The Perils and Potential of Prior Consistent Statements: Let’s Get it Right, in speaking of the court’s ruling in R. v. Edgar, 2010 ONCA 529, “The Edgar court noted that this hearsay rationale for exclusion of a prior consistent [statement] evaporates where the accused takes the stand and exposes himself or herself to cross-examination.”

[8] The defence relies on R. v. Picton, 2007 BCSC 799, [2007] BCJ No. 3083. In that case, the Crown introduced an earlier statement, but chose not to introduce the second statement. As the Court stated at para. 11:

However, where a subsequent statement is so bound up or inextricably connected with an earlier one, or where the subsequent statement is an amplification, qualification or explanation of an earlier statement, fairness dictates that it should be producible at the instance of the accused. [Citations omitted.]

[9] The issue of amplification was reviewed by the Ontario Court of Appeal in R. v. Phillips, 1999 2449 (ON CA), [1999] O.J. No. 2848. On the facts of that case, the Court determined that the later statement was not an amplification, qualification or explanation of the earlier comments, and therefore was not admitted into evidence. The Court restated the applicable rule at para. 11 as follows, “The statement taken at the detachment was inadmissible under the general rule that an accused cannot adduce self-serving statements made by him through other witnesses.”

[10] The Crown relied on the Supreme Court of Canada’s decision in R. v. Fisher, [2005] CCCA, No. 308. The Court commented on the mischief of allowing an accused to escape cross-examination if a previous exculpatory statement is introduced in this fashion. That mischief was elaborated in R. v. Simpson, 1988 89 (SCC), [1988] 1 S.C.R. 3, where the Court stated at para. 24:

As a general rule, the statements of an accused person made outside court subject to a finding of voluntariness where the statement is made to one in authority – are receivable in evidence against him but not for him. This rule is based on the sound proposition that an accused person should not be free to make an unsworn statement and compel its submission into evidence through other witnesses and thus put his defence before the jury without being put on oath and being subjected as well to cross-examination.

[11] On the facts in Simpson, the Court noted that the Crown could not be compelled or directed to tender this evidence, and then indicated at para. 26, “It remains then to consider whether on the facts of this case, the trial judge should have exercised his discretion by admitting the second statement on the application of the defence.”

Conclusion

[12] Mr. Keene made lengthy statements to undercover Officer P.S.. Those statements were not made under oath and were not given to a person in authority. Mr. Keene thought he was dealing with a crime boss.

[13] The circumstances of these statements to Officer Carleton were different. He knew he was speaking to a person in authority. He knew the interview was being video and audio-recorded. This was his first opportunity to speak to a person in authority, not at his request, but at the request of the officer.

[14] This is not a case where the defence seeks to introduce the entirety of the interview, nor does the defence seek to exclude subsequent aspects of the interview sought by the Crown if defence is successful. In my view, the brief comments of Mr. Keene noted above can be considered an amplification of his interview with the undercover officer. Of course the reliability and truthfulness of his answers are issues for the jury to decide within the entire context of the evidence at trial. These discreet answers do not stand alone.

[15] I am satisfied that the mischief referred to by the Court of Appeal in earlier decisions can be avoided by limited Mr. Keene’s answers to those passages suggested by defence. The Crown is not at a disadvantage because it will have the opportunity to introduce subsequent statements from the interview and of course, may well make submissions as to the reliability and credibility of Mr. Keene, not just with respect to these statements, but with respect to other statements made by him.

MULLIGAN J.

Released: June 12, 2015