Court File and Parties

Citation: R. v. Bobb, 2015 ONSC 6126 Court File No.: 13-4/398 Date: 2015-10-02 Superior Court of Justice - Ontario

Re: Regina v. Lavalle Bobb

Before: E.M. Morgan J.

Counsel: Anna Stanford, for the Crown Charn Gill, for the Defendant

Heard: October 1, 2015

Endorsement – KGB Application

[1] The Defendant is charged with participating in an armed home invasion that occurred at the home of the Russell family in the Rexdale area of Toronto on May 24, 2012. It is being tried by me sitting without a jury.

[2] The Crown seeks to have potions of the police interview given by Dru Russell on May 25, 2012 admitted into evidence not to impeach his credibility, but for the truth of their contents. Dru Russell is the oldest son of the Russell family, and he was one of the persons at home at the time of the incident in issue.

[3] Specifically, Crown counsel points to statements made by Dru Russell at pages 2, 18, and 39 of the transcript of that interview. Although his comments are not entirely clear, in these statements Mr. Russell seems to indicate that he saw up to 6 intruders in his home on May 24, 2012. This would differ from his testimony at trial, where he stated that there were only 4 (or possibly 5) intruders.

[4] The Defense concedes that the context in which these statements were given – a videotaped police interview – satisfies the requirements of reliability and necessity. The statements may be admitted on that basis: R v B (KG), [1993] 1 SCR 740.

[5] Defense counsel’s only point is that the parallel portions of Dru Russell’s testimony at the preliminary inquiry held on April 30, 2013 should also be admitted into evidence. He submits that in that way, as trier of fact I will be able to see all of Mr. Russell’s statements in context.

[6] The relevant statements made by Dru Russell at the preliminary inquiry appear to mirror his testimony at trial, and indicate that he thought he saw 4 intruders in his home. These, of course, amount to prior consistent statements to those he made at trial. Crown counsel submits that they should be excluded for all of the usual reasons we exclude prior consistent statements: they lack probative value, and are self-serving and bootstrapping.

[7] Defense counsel relies on Stirling v The Queen, 2008 SCC 10, [2008] 1 SCR 272, where the Supreme Court of Canada set out an exception to the rule excluding prior consistent statements. Bastarache J., for a unanimous Court, observed at para 5 that, “prior consistent statements can be admitted where it has been suggested that a witness has recently fabricated portions of his or her evidence”, citing R v Evans, [1993] 2 SCR 629, at 643, and R v Simpson, [1998] 1 SCR 3, at 22-23.

[8] That is essentially the Crown’s position here. Crown counsel contends that Dru Russell told the truth in the immediate aftermath of the offense in May 2012, but that he subsequently changed his evidence and reduced the number of people he says he saw in his home on the night in question.

[9] The preliminary inquiry took place a year after Dru Russell’s initial statement to the police. Crown counsel states that this year was sufficient time for him to change his mind and change his testimony. That would mean that the recent fabrication he is alleged to have made at trial is not altogether recent, since it was already formulated back in April 2013.

[10] On this point, Bastarache J. states that “the issue is not the recency of the fabrication but rather whether the witness made up a false story at some point after the event that is the subject of his or her testimony actually occurred”: Stirling, at para 5, citing R v O’Connor (1995), [100 CCC (3d) 285], at 294-5 (Ont CA). Justice Bastarache then went on to observe, at the conclusion of para 5, that, “[p]rior consistent statements have probative value in this context where they can illustrate that the witness’s story was the same even before a motivation to fabricate arose.”

[11] It is this last observation that gives me pause. The Crown’s position is that Dru Russell was prompted to change his story and reduce the number of intruders he says entered his home when, sometime after his initial statement to the police, he realized that he might otherwise be perceived as a “snitch” among his compatriots. As defense counsel points out, in terms of timing this motivation to fabricate would have occurred once Dru Russell saw the security video footage which has been played at trial. That footage shows that there were 6 individuals who approached the Russell home on the night of May 24, 2012.

[12] I do not know whether Dru Russell saw that video footage after he testified at the preliminary inquiry, or whether he saw it before he testified at the preliminary inquiry. Indeed, I do not know whether he has seen it at all. Only if he saw it after his testimony at the preliminary inquiry would it be probative in the way that Bastarache J. describes.

[13] Given that there is no evidence of whether Dru Russell has ever viewed the security video footage, there is nothing before me on which I can determine that his statements at the preliminary inquiry are admissible. It has therefore not been established that those statements fit within the principle expressed by the Supreme Court in the Stirling case.

[14] I conclude that while Dru Russell’s statements to the police on May 25, 2012 regarding the number of intruders he saw are admissible for substantive purposes, the statements he made at the preliminary inquiry on April 30, 2013 regarding the number of intruders are not admissible for substantive purposes.

Morgan J.

Date: October 2, 2015