CITATION: R. v. Tsega, 2016 ONSC 3399

COURT FILE NO.: 11-RM2878

DATE: 2016/06/03

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Applicant

– and –

SAM TSEGA

Respondent

Mark Moors and Dallas Mack, for the Applicant

Giuseppe Cipriano, Dominic Lamb, and Anthony Paciocco, for the Respondent

HEARD: April 25-26, 2016

ADMISSIBILITY RULING #1: OUT-OF-COURT STATEMENTS

Aitken J.

Issue

[1] Sam Tsega stands charged with second degree murder in the shooting death of Michael Swan in the early hours of February 22, 2010. Mr. Tsega was not present when the murder occurred. Kristopher McLellan, the shooter, has been convicted of first degree murder. His accomplices, Kyle Mullen and Dylon Barnett, have been convicted of second degree murder. Messrs. McLellan, Mullen, and Barnett lived in Toronto and, throughout this case, have been referred to as “the Toronto Three”.

[2] The Crown’s theory is that Sam Tsega and his old friend from Toronto, Dylon Barnett, planned a home invasion at 4139 Moodie Drive in Ottawa, with the goal of stealing marijuana and money. It was known to Mr. Tsega that Mr. Swan lived and carried on business as a marijuana dealer at this address. The Crown’s theory is that Mr. Tsega directed the Toronto Three to this locale and provided them with details of what to expect there. It was during the home invasion that Mr. Swan was killed. During the home invasion, Mr. McLellan and Dylon Barnett had firearms. The Crown’s theory is that Mr. Tsega knew that one or more of the Toronto Three were gang members and were armed and dangerous on the night of the home invasion.

[3] Both Kristopher McLellan and Kyle Mullen were called by the Crown to testify at this trial. Both men are serving life sentences for the murder of Michael Swan. Both men refused to be sworn or to affirm. Both were cited in contempt. On earlier occasions, both men made statements to the police regarding the alleged involvement of Sam Tsega in the events of February 21-22, 2010, and Mr. McLellan testified at his own trial. The Crown asks that some of these previous statements be admitted into evidence pursuant to the principled approach to hearsay. The criteria of necessity has been made out in regard to all of the earlier statements because the testimony of each is out of reach unless those statements are admitted. The issue which has to be considered in regard to each statement is whether that statement can meet the requirement of threshold reliability.

Principled Approach to Hearsay

[4] Hearsay evidence is presumptively inadmissible because the dangers associated with it due to the inability to test a declarant’s perception, memory, narrative, or sincerity may undermine the truth-seeking function of a trial or trial fairness (R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 2; R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520, at paras. 31-32; and R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 18).

[5] In Khelawon, Charron J. set out the principles to be applied in determining the admissibility of hearsay evidence.

• All relevant evidence is admissible, subject to some exceptions, including hearsay.

• A hearsay statement is one that is being adduced to prove the truth of its contents and there is the absence of a contemporaneous opportunity to cross-examine the declarant in regard to the statement.

• Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule.

• The traditional exceptions to the hearsay rule (including past recollection recorded) remain presumptively in place.

• In rare cases, evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case.

• If hearsay evidence does not fall under a hearsay exception, it may still be admitted under the principled approach to hearsay; namely, if the indicia of reliability and necessity are established on a voir dire. The onus is on the party who seeks to adduce the evidence to establish these criteria on a balance of probabilities.

• Even if the two criteria are met, the trial judge has the discretion to exclude hearsay evidence where its probative value is outweighed by its prejudicial effect. This is done to ensure trial fairness.

• On an admissibility voir dire, the trial judge determines threshold reliability only – not ultimate reliability.

[6] As stated by Lamer C.J. and Iacobucci J. in R. v. Hawkins, 1996 CanLII 154 (SCC), [1996] 3 S.C.R. 1043, at para. 75:

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.

[7] Wagner J., dissenting, in Youvarajah, at para. 102, emphasized that trial fairness and protection against the dangers presented by hearsay evidence “are not sacrificed where the trier of fact is ultimately able to make reasonable determinations of the weight to be accorded to evidence before the court.” The gatekeeping function of the trial judge is to determine whether the hearsay evidence is sufficiently reliable to allow the fact-finder to assess its ultimate reliability and weight in the context of all of the other admissible evidence.

[8] “The trial judge must also be satisfied on a 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” (R. v. Sharif, 2009 BCCA 390, 275 B.C.A.C. 171, at para. 12, quoting from R. v. Post, 2007 BCCA 123, 66 B.C.L.R. (4th) 148, at para. 47).

[9] In terms of indicia of threshold reliability, there are two avenues: (1) the presence of adequate substitutes for contemporaneous cross-examination of the declarant on the statement that would enable the trier of fact to assess the statement’s truth and accuracy (procedural substitutes) (see e.g. R. v. B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740 and Hawkins), and (2) the presence of sufficient circumstantial guarantees of reliability or an inherent trustworthiness (substantive reliability) (see e.g. R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531; R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915; and R. v. U. (F.J.), 1995 CanLII 74 (SCC), [1995] 3 S.C.R. 764). These avenues are not mutually exclusive and factors relevant to one may complement the other (R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, at para. 80, and R. v. Taylor, 2012 ONCA 809, 294 C.C.C. (3d) 483, at para. 26).

[10] In regard to the first avenue, the real question is whether the trier of fact will be in a position to test and evaluate the evidence. Factors to consider include:

• was the declarant under oath or affirmation when making the statement;

• was the statement audio or video-taped;

• was the declarant cross-examined at the time of making the statement; and

• is the declarant now available to be cross-examined about the making of the earlier out-of-court statement. (David M. Paciocco & Lee Stuesser, The Law of Evidence, 7th ed. (Toronto: Irwin Law, 2015), at 138.)

[11] Where the criteria of necessity and threshold reliability are satisfied, the lack of testing by cross-examination goes to the weight that can be assigned to the statement, not the admissibility of the statement (Smith, at 935).

[12] One situation where hearsay statements have been admitted for the truth of their contents is where a witness at trial resiles from an earlier out-of-court statement. Lamer C.J. in B. (K.G.), at 795-796, concluded that there will be “sufficient circumstantial guarantees of reliability” to render the prior inconsistent statement admissible where:

(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 … has a full opportunity to cross-examine the witness respecting the statement …

[13] These requirements are stringent to enable the fact-finder to compare the in-court and out-of-court statements on as level a playing field as possible, recognizing that the declarant has made conflicting statements and the trier of fact needs adequate tools in order to assess the credibility of the declarant and the reliability of each statement. That being said, Lamer C.J., at 796, left the door open for alternative indicia of reliability in regard to previous inconsistent statements:

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.

[14] When the hearsay statement is not a prior inconsistent statement but is simply an earlier out-of-court statement, there may be other procedural safeguards not rising to the level of the B.(K.G.)requirements that imbue the evidence with threshold reliability. In Hawkins, at para. 76, the Supreme Court held that, generally, a witness’s testimony at a preliminary inquiry will satisfy the test for threshold reliability since the fact that it was given under oath and subject to contemporaneous cross-examination at the time it was given in a hearing involving the same parties and mainly the same issues will provide sufficient guarantees of its trustworthiness (see Khelawon, at para. 91). That being said, the full opportunity to cross-examine the declarant at trial has generally been recognized as the most powerful safeguard supporting the admissibility of an out-of-court statement (Youvarajah, at para. 35; Couture, at paras. 92, 95; R. v. Devine, 2008 SCC 36, [2008] 2 S.C.R. 283, at para. 26; and R. v. Trieu (2005), 2005 CanLII 7884 (ON CA), 74 O.R. (3d) 481, 195 O.A.C. 263 (C.A.), at paras. 76, 78). But the Charter right of an accused person to make full answer and defence is not a right to cross-examine a witness. As stated by the British Columbia Court of Appeal in R. v. Naicker, 2007 BCCA 608, 249 B.C.A.C. 145, at para. 29 (leave to appeal refused, 2008 CarswellBC 801 (S.C.C.)):

Cross-examination is but one means of achieving trial fairness, which embraces more than the rights of the accused. It includes the societal interest of having the trial process lead to the truth. Trial fairness in the admissibility of a hearsay statement can be achieved in the absence of cross-examination where the evidence can be established to be so reliable that little would be gained by the declarant being subjected to cross-examination …

[15] In regard to the second possible road to a finding of threshold reliability, namely the inherent trustworthiness of the statement, one must consider the traditional dangers associated with hearsay evidence: perception, memory, and credibility (Smith, at 935). Where these dangers are absent or minimized, hearsay evidence may meet the requirement of threshold reliability. What is important is whether there is “a certain cogency about the statements that removes any real concern about their truth and accuracy” (Couture, at para. 100). Some factors to consider in regard to inherent trustworthiness include:

• whether the statement was made spontaneously;

• whether it flowed naturally;

• whether it was made without suggestion or prompting;

• whether it was made reasonably contemporaneously with the events;

• whether the declarant had a motive to fabricate or whether, on the contrary, there was a proven absence of a motive to fabricate;

• whether the declarant was of sound mental state;

• whether the statement was against the declarant’s interest in whole or in part;

• whether the declarant was a young person who would not likely have knowledge of the acts alleged;

• whether there is corroborating evidence; and

• whether that corroborating evidence is tainted as a result of collusion (Paciocco & Stuesser, at 136)

[16] Particular caution must be exercised before finding that an out-of-court statement of an accomplice or co-accused meets threshold reliability; nevertheless, many such statements have been admitted in evidence (see e.g. R. v. Kehler, 2004 SCC 11, [2004] 1 S.C.R. 328; R. v. Fraser (1997), 1997 CanLII 2562 (NS SC), 165 N.S.R. (2d) 177 (S.C.); R. v. T. (B.), 2012 NSPC 87, 322 N.S.R. (2d) 117; R. v. Chang (2003), 2003 CanLII 29135 (ON CA), 170 O.A.C. 37 (C.A.); R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104); R. v. Linklater, 2009 ONCA 172, 246 O.A.C. 303; and Naicker).

[17] In regard to Vetrovec witnesses, confirmatory evidence should be independent and material so as to provide comfort to the trier of fact that the unsavoury witness is telling the truth (Khela, at paras. 39-43). In Kehler, Fish J., when referring to the evidence of an accomplice who implicated the accused in a series of robberies, emphasized that confirmatory evidence, as required in a Vetrovec situation, need not directly implicate the accused. It sufficed if the confirmatory evidence restored the trier of fact’s faith in those portions of the witness’s account that implicated the accused. Fish J. stated at paras. 15-16:

[The accomplice’s] detailed account of the robbery, though undisputed, was no less “relevant” to the offences charged than his implication of the appellant in their commission. And while confirmatory evidence should be capable of restoring the trier’s faith in relevant aspects of the witness’s account, it hardly follows that the confirmatory evidence must, as a matter of law, implicate the accused where the only disputed issue at trial is whether the accused was a participant in the crimes alleged.

As the appellant himself concedes, it is clear from Vetrovec … that independent evidence, to be considered confirmatory, does not have to implicate the accused. There is no separate rule in this regard for cases where the only evidence of the accused’s participation in the offence is that of a tainted witness. [emphasis in original]

[18] It is also well accepted that corroboration of one Vetrovec witness can be found in the evidence of another Vetrovec witness, as long as their evidence was not similar as a result of collaboration or collusion (R. v. Linklater, 2009 ONCA 172, 246 O.A.C. 303, at paras. 11-12; Naicker, at para. 34). But, as the courts warned in Youvarajah, at paras. 62, 64, and R. v. Bidesi, 2015 BCSC 126, at para. 105, the statements of an accomplice should be approached with caution in circumstances where the effect of the statement is to deflect responsibility to a co-accused or accomplice and the reliability of the statement cannot be adequately tested.

[19] In Naicker, the British Columbia Court of Appeal upheld a trial judge’s decision to admit an accomplice’s statement made to the police immediately following arrest, and implicating the accused, in circumstances where the accomplice’s trial had been held prior to that of the accused, and the accomplice refused to testify at the accused’s trial – circumstances very similar to those in this case. The accomplice’s statement was not audiotaped or videotaped and was not under oath. The accomplice could not be cross-examined regarding the statement. Nevertheless, the British Columbia Court of Appeal agreed with the trial judge that there were sufficient indicia of procedural reliability: (1) the statement was a voluntary confession, (2) it was internally consistent, (3) the accomplice had special knowledge of the incident as a participant, (4) the accomplice’s demeanour when giving the statement was unremarkable, (5) the police officer’s recollection was highly accurate, (6) the accomplice had been made aware of his legal rights prior to providing the statement, (7) the police officer did not employ leading questions, (8) the accomplice had no motive to lie about the identity of those with whom he participated in the crime, and (9) the statement was almost entirely inculpatory.

[20] Of particular importance in Naicker was that the declarant did not minimize his own involvement or attempt to deflect responsibility from himself to the accused. This distinguishing feature was highlighted in the case of Bidesi, at para. 80, where the trial judge ruled out-of-court statements of two accomplices to a home invasion inadmissible against a third alleged accomplice:

Unlike in Naicker, Messrs. L. and M. [the declarants] did have a motive to lie and may have been deflecting responsibility to others. Naicker would only be truly analogous if the issue before this Court was whether the accused was an accomplice in a home invasion and the statements of Messrs. L. and M. were led to show the accused was a participant. However, the circumstances here are very different. The evidence is not being offered to show that the accused participated in the home invasion; it is being tendered to prove that Messrs. L. and M. did not shoot Mr Rogers. That leaves only one participant remaining who could have shot Mr. Rogers: the accused. The substantial issue before the Court is who fired the shotgun that killed Mr. Rogers. By stating that they did not shoot the victim, Messrs. L. and M. were deflecting responsibility. The effect of the statement given by each is that the involvement of one or both of the other participants was greater than his own. The possibility that they may have been deflecting responsibility in this manner truthfully is not significant to the question of threshold reliability. The question is whether there was a motive to lie. The defence persuasively argues, “there can be no greater motive to lie than being accused of murder and having an opportunity to implicate someone else, directly or indirectly.” Messrs. L. and M. did not want to be found guilty of murder and their evidence would implicate the accused and perhaps others. These circumstances are distinguishable from those in Naicker, and I cannot conclude that the circumstances provide compelling indicia of reliability.

[21] In regard to motive to lie, “[t]he absence of evidence of motive to fabricate is not the same as evidence of the absence of motive to fabricate” (R. v. Czibulka (2004), 2004 CanLII 22985 (ON CA), 190 O.A.C. 1 (C.A.), at para. 35 (leave to appeal refused, 2005 CarswellOnt 2041 (S.C.C)). The absence of evidence in regard to motive to lie cannot amount to a factor favouring the admissibility of the statement (Czibulka, at paras. 43-44). The issue of motive remains a neutral factor. Evidence of the absence of a motive to fabricate can come from the circumstances in which the statement is made, including the relationship between the declarant and the recipient of the statement, or the declarant and the subject of the statement (e.g. Khan, Smith). Where this type of evidence does not exist, or where evidence points in different directions as to whether the declarant had a motive to fabricate, the statement may still be admissible if there are other significant indicia of trustworthiness and reliability.

[22] When considering the inherent trustworthiness of the accomplices’ statements, in addition to the concern about a strong motive to lie, the trial judge in Bidesi was concerned about the following factors: (1) no oath had been administered before the accomplices gave their statements; (2) the police officers had used many leading questions throughout the interviews; (3) one of the accomplices changed his evidence dramatically as the interview progressed; (4) there was no opportunity to cross-examine either accomplice; and (5) the corroborating evidence went only to ancillary matters and not to the substantial issue before the Court, namely, who was the shooter.

[23] Corroborating evidence must not be the product of collusion. “Collusion can arise both from a deliberate agreement to concoct evidence as well as from communication among witnesses that can have the effect, whether consciously or unconsciously, of colouring and tailoring their descriptions of the impugned events” (R. v. C.B. (2003), 2003 CanLII 32894 (ON CA), 167 O.A.C. 264 (C.A.), at para. 40). In R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, the Supreme Court of Canada explained at paras. 110, 112, in the context of similar fact evidence:

Cogency is derived from the improbability of coincidence. Collusion is a factor, yes, but more than that it is a crucial factor because the existence of collusion rebuts the premise on which admissibility depends.

[24] On a similar fact evidence application, the Crown must satisfy the court, on a balance of probabilities, that the similar fact evidence is not tainted by collusion. If the Crown cannot satisfy this onus, and if the court finds actual collusion, the similar fact evidence is not admissible. Where, however, the evidence shows only the opportunity for collusion or collaboration possibly tainting the evidence, the matter should be left to the ultimate fact-finder as a factor going to the weight to be assigned to such evidence (Handy, at paras. 110-113 and R. v. Dorsey, 2012 ONCA 185, 289 O.A.C. 118, at para. 26).

Kyle Mullen’s Statement to Detective Gordon and Sergeant Simser September 9, 2010

Background Context

[25] The background to Kyle Mullen making a statement on September 9, 2010 must be considered.

[26] Prior to his conviction for the second degree murder of Michael Swan, Mr. Mullen had 11 previous criminal convictions. He was not a neophyte in the criminal justice system.

[27] Following his arrest in the wee hours of February 22, 2010, and while he was in cell block waiting to speak to counsel, Mr. Mullen was heard by Constable Dinis Oliveira to make statements to the following effect:

• That he had been getting his life back on track and soon would have been earning money through work but, instead, had decided to get money in 20 minutes.

• That he was too good a person to be involved in the events of that day.

• That no one deserved to be hurt and that, if he had not got caught, he would have been thinking about this for the rest of his life.

• That there had been some dogs in the corner that were terrified and scared, and he had petted them while he was waiting for the car.

• That he had thought that the person from whom they would be stealing the money and marijuana was a gangster, but that had not been the case.

• That he had left, presumably Michael Swan’s home, with six pounds of marijuana.

[28] Part way through Mr. Mullen volunteering this information, Constable Oliveira advised him that he was writing down everything Mr. Mullen was saying. That appeared to give Mr. Mullen pause – but he continued speaking.

[29] At approximately 20:30, Mr. Mullen met with counsel.

[30] At 21:06, Detective Theresa Kelm began a videotaped interview with Mr. Mullen. She advised Mr. Mullen that he did not have to say anything to her, and he acknowledged that he knew that. She advised that anything he said could be used in court against him. She confirmed that he had not been threatened and no promises had been made to him. Mr. Mullen stated how much he liked Constable Oliveira and appreciated how he had treated him. For at least half of the interview, Detective Kelm and Mr. Mullen spoke in general terms about Mr. Mullen’s life. The only things Mr. Mullen eventually said about the events of the day were that he had not done anything, he had just been in the wrong place at the wrong time, he had not pulled the trigger, he was not in the room when the gun went off, he had probably been in the washroom, despite that he was glad that he had got caught, and he had petted the dogs who had been very scared. Otherwise, Mr. Mullen repeatedly asserted his right to silence pursuant to his counsel’s advice and said countless times that he was done talking. Despite that, Detective Kelm persisted in an effort to get him to talk. By the end of the interview at 22:18, Mr. Mullen said that he was not feeling well and that he was starved. He appeared to be in pain on the video. Throughout the interview, it was clear that Mr. Mullen was well aware of his right to remain silent and he was able to assert that right.

[31] Kyle Mullen and Kristopher McLellan were both housed at the Lindsay Jail pending trial. By September 9, 2010, their lawyers had received only the first disclosure package, which included the statements of the witnesses inside the house at the time of the murder, as well as the statements of each of the Toronto Three. No disclosure had yet been made to the Toronto Three about the statements given to police by Connor and Alec Buchanan in April 2010. Those related to comments made to them by Sam Tsega to the effect that, on the night of February 21-22, 2010, the Toronto Three had threatened him at gunpoint in his home and had forced him to divulge the address of Michael Swan so that the Toronto Three could rob Mr. Swan of money and marijuana. Disclosure of these police interviews was only made with the second disclosure package of September 21, 2010.

The September 9, 2010 Statement

[32] On September 9, 2010, Detective Sean Gordon and Sergeant Dan Simser went to the Lindsay Jail to interview both Mr. McLellan and Mr. Mullen. The ostensible purpose of their visit was to see how they were doing, to play for them the recording of Sam Tsega’s call to Pizza Pizza on the night of the murder, and to advise them that the ballistics report confirmed that the Sig Sauer gun found on Mr. Mullen at the time of his arrest was the murder weapon. The real purpose of their visit was to prompt some conversations between the two men or either of them and third parties (all of their telephone conversations and conversations with visitors being recorded pursuant to a wiretap authorization), and to see if either would volunteer any more information.

[33] At the commencement of the interview with Mr. Mullen, the officers did not remind Mr. Mullen of his right to remain silent, nor did they caution him that anything he said could be used against him in court. No secondary caution was given. At one point it was acknowledged that Mr. Mullen was not obliged to say anything to the officers. Mr. Mullen seemed well aware of his rights and he chose what to divulge and what not to. He had strong views about not being “a rat”.

[34] The officers started the conversation by telling Mr. Mullen that the gun found on his person at the time of the arrest was the murder weapon and suggesting to him that, although all three of the men were charged with first degree murder, in terms of the responsibility for the shooting, he was at risk of a jury concluding that he was the shooter. That could result in his spending more time in prison than the others. Detective Gordon then explained that their issue at that point was the role Sam Tsega played in the events of the evening and he threw out the allegation that Sam Tsega had made when speaking to Connor and Alec Buchanan to the effect that he had been forced at gunpoint to tell or show the Toronto Three where Michael Swan lived. Detective Gordon went on to ask Mr. Mullen if he had any comments. Although at first somewhat reluctant to comment, Mr. Mullen went on to deny that he forced Mr. Tsega to do anything.

[35] Detective Gordon then focused on the statement of Dylon Barnett that had been disclosed to Mr. Mullen’s counsel. In that statement, Mr. Barnett stated that Kyle Mullen had been in possession of a gun. When asked by the officers whether there were any issues the police should know about, Mr. Mullen volunteered that he had not come with his own gun, he had not had a gun in Mr. Swan’s house, he had not been armed at all, but that at some point after the three of them had left the house, he had been given a gun. He would not say by whom. He acknowledged that when he was in the house, he had picked up a bat. He described it in some detail. He denied ever using it as a weapon in any fashion.

[36] Detective Gordon then returned to the question of whether Sam Tsega had been threatened. Mr. Mullen denied that any of the Toronto Three had threatened Mr. Tsega. When Mr. Mullen realized that Mr. Tsega was actually alleging that he had been threatened by the Toronto Three, and it was not just a theory being thrown out by the officers, Mr. Mullen seemed quite surprised and made a number of comments suggesting that this was the first time that he was hearing about that. His statements appeared spontaneous. Mr. Mullen went on to describe how the Toronto Three had met Mr. Tsega on the night of February 21 and had ordered pizza. He described the Toronto Three going into Mr. Tsega’s house, Mr. Barnett greeting Mr. Tsega’s brother, Mr. Mullen and Mr. Tsega going up to Mr. Tsega’s bedroom at which time Mr. Mullen attempted to message his “baby mother” via Facebook on Mr. Tsega’s computer, and Mr. Tsega lending Mr. Mullen a sweater. Mr. Mullen described Joshua Jackson and his girlfriend being downstairs watching a football or hockey game on the television.

[37] Mr. Mullen then initiated a conversation about Dylon Barnett’s statement saying that it sounded as if Mr. Barnett was pointing to him as the shooter. This resulted in a lengthy back and forth about Mr. Barnett being a close friend of Kristopher McLellan and Sam Tsega, and about the possibility that he would try to protect them and finger Mr. Mullen, whom he barely knew, as the shooter. Clearly, Mr. Mullen was worried about this.

[38] Close to the end of the interview, the conversation reverted to Mr. Tsega. Mr. Mullen again explained that he had gone to Mr. Tsega’s room to borrow a sweater and to message his “baby mother”. He described the sweater as being black and being the one that the police had. Mr. Mullen added that Mr. Tsega had given the Toronto Three a couple of sweaters, two pairs of gloves, two masks, and a scarf. Mr. Mullen described the Jackson home in terms of the layout of rooms on the first and second floors and the layout of Mr. Tsega’s room.

[39] During the course of the conversation relating to Mr. Tsega, Mr. Mullen said that one of the only things Mr. Tsega said to him that evening was that Mr. Tsega was scared of the people from whom Michael Swan obtained his supply of drugs. Mr. Tsega considered them crazy, and he did not want those people to know that he had been involved in any way with what was to happen at Mr. Swan’s home that night.

Aftermath of the Statement

[40] On November 16, 2010, Detectives Gordon and McIntosh interviewed Mr. Mullen at the Lindsay Jail. The ostensible reason for their visit was to serve Mr. Mullen with a notice of the interception of his private communications – service that could have been effected on his counsel. The real reason for the visit was to see if he had anything further to say. No reminders were given to Mr. Mullen about his right to remain silent or the fact that anything he said could be used in court against him. No secondary caution was given. Nothing of any probative value was said during this brief interaction.

Analysis

[41] In Khelawon, the Supreme Court ruled inadmissible a videotaped statement made by a complainant to the police in circumstances where the complainant had died prior to the accused’s trial. There was no issue that the necessity requirement for the admission of the statement under the principled exception to the hearsay rule had been met. It was the reliability requirement that could not be met. Charron J. explained, at paras. 106-107 why neither route to establish threshold reliability was available:

Obviously, there was no case to be made here on the presence of adequate substitutes for testing the evidence. This is not a Hawkins situation where the difficulties presented by the unavailability of the declarant were easily overcome by the availability of the preliminary hearing transcript where there had been an opportunity to cross-examine the complainant in a hearing that dealt with essentially the same issues. Nor is this a B. (K.G.) situation where the presence of an oath and a video were coupled with the availability of the declarant at trial. There are no adequate substitutes here for testing the evidence. There is the police video – nothing more. The principled exception to the hearsay rule does not provide a vehicle for founding a conviction on the basis of a police statement, videotaped or otherwise, without more. In order to meet the reliability requirement in this case, the Crown could only rely on the inherent trustworthiness of the statement.

In my respectful view, there was no case to be made on that basis either. This was not a situation as in Khan where the cogency of the evidence was such that, in the words of Wigmore, it would “pedantic to insist on a test whose chief object is already secured” (§ 1420, at p. 154). To the contrary, much as in the case of the third statement ruled inadmissible in Smith, the circumstances raised a number of serious issues such that it would be impossible to say that the evidence was unlikely to change under cross-examination. [emphasis added]

[42] Charron J. went on to enumerate many of those concerns. The complainant was elderly and frail. He had been diagnosed with paranoia and dementia. There were other possible explanations for his injuries. His allegations may have been influenced by others. He may have had other motives to complain about the behavior of the accused. It was unclear from his video statement that he understood the importance of telling the truth. Although his statement was strikingly similar to the statements of the other complainants in the case, those statements themselves raised serious issues and could not be admitted to assist in assessing the reliability of the statement in question.

[43] In Youvarajah, the issue was whether an Agreed Statement of Facts which formed the basis of a guilty plea by a co-accused, and which also implicated Youvarajah, was admissible at Youvarajah’s trial. This evidence was necessary because the co-accused recanted that portion of the Agreed Statement of Facts relating to Youvarajah. Due to the co-accused’s claimed memory loss and his invocation of solicitor-client privilege, any cross-examination of him at trial would be significantly curtailed. The Supreme Court agreed with the trial judge that threshold reliability could not be established on the basis of any procedural substitutes to contemporaneous cross-examination. The Agreed Statement of Facts had not been agreed to under oath, the hearing when it had been accepted by the co-accused had not been videotaped, and the statement was not the spontaneous words of the co-accused but a document prepared by Crown and Defence counsel. In regard to whether the statement was inherently trustworthy, Karakatsanis J. observed at paras. 59, 60, and 62:

To the extent that the [Agreed Statement of Facts] incriminated [the co-accused], was against his interests, and admitted his own culpability in court, these circumstances provide a compelling inference that those statements were in fact reliable in establishing [the co-accused’s] criminal conduct. However, the underlying rationale for the admissibility of admissions as against the party making them falls away when they are sought to be used against a third party.

Here, the portions of the [Agreed Statement of Facts] that the Crown sought to rely upon at [Youvarajah’s] trial are statements that shifted responsibility for the murder from [the co-accused], the shooter, to his co-accused, [Youvarajah]. They were elements that would support a plea to the lesser offence of second degree murder as well as support a more advantageous sentence.

Criminal law is generally and rightfully suspicious of allegations made by a person against an accomplice. It has long been recognized that evidence of one accomplice against another may be motivated by self-interest and that it is dangerous to rely on such evidence absent other evidence which tends to confirm it. … Indeed, statements by a co-accused or accomplice are recognized as inherently unreliable. [emphasis added]

[44] That being said, in R. v. Vetrovec, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811, the Supreme Court of Canada, at 823, rejected “a fixed and invariable rule” for all accomplices:

…All that can be established is that the testimony of some accomplices may be untrustworthy. But this can be said of many other categories of witness. There is nothing inherent in the evidence of an accomplice which automatically renders him untrustworthy.

[45] The type of concerns that led the court to exclude hearsay evidence in Khelawon and Youvarajah do not exist here. Unlike Khelawon, there is much reliable and uncontroverted evidence to support those elements of Kyle Mullen’s statement that relate to Sam Tsega. Unlike Youvarajah, nothing that Kyle Mullen says about Sam Tsega’s involvement in the events of February 21-22, 2010 reduces the culpability of Mr. Mullen in Michael Swan’s murder – the critical charge being faced by Mr. Mullen. In fact, Mr. Mullen’s evidence in this regard goes to issues of planning that could increase Mr. Mullen’s liability. It is true that Mr. Mullen denies that any threats were made against Mr. Tsega; however, in the overall scheme of things, as evidenced by all of the interchanges between Mr. Mullen and the police, Mr. Mullen was much more concerned about the murder charge than any potential threatening charge. As well, there is circumstantial evidence to support Mr. Mullen’s statement that no threats were made against Mr. Tsega.

Ability of Trier of Fact to Assess the Truth and Accuracy of the Statement

[46] Some of the dangers inherent in admitting Kyle Mullen’s statement of September 9, 2010 arise from the following:

• The statement was not made under oath and no warning was given to Mr. Mullen about the importance of telling the truth and the criminal sanctions that could apply if he were to lie.

• The statement was not videotaped and therefore Mr. Mullen’s demeanour throughout cannot be observed.

• No cross-examination of Mr. Mullen occurred at the time he made the statement.

• There could be problems with Mr. Mullen’s perception, memory, narration, or credibility that cannot be explored without the opportunity for cross-examination at trial.

[47] Although Mr. Mullen was not warned by Detective Gordon and Sergeant Simser that it was important that he tell the truth and that anything he said could be used against him, and others, in court, I am satisfied that Mr. Mullen fully appreciated this. Mr. Mullen was not a neophyte in the criminal justice system and was well aware that anything that he said during interviews with police officers could be used against him in court. He had been arrested and interviewed by police officers on numerous occasions in the past. More specifically, when first interviewed by Detective Kelm following his arrest for these offences, Mr. Mullen was advised that whatever he said could be used against him at trial. As well, it was clear from the way Mr. Mullen was speaking about Mr. Tsega’s involvement in the events in question that he was aware that what he said about Mr. Tsega could result in Mr. Tsega being charged with a criminal offence. In fact, during all of his interviews with police officers during the course of this investigation, Mr. Mullen was careful not to implicate anyone other than himself and only implicated Mr. Tsega when he realized Mr. Tsega was alleging an independent criminal offence on Mr. Mullen’s part. I am satisfied that Mr. Mullen appreciated the importance of telling the truth about Mr. Tsega, despite Mr. Mullen’s statement not being under oath and his not being specifically advised of the criminal ramifications if he were to lie.

[48] Although the statement was not videotaped, it was audiotaped. This is another factor which reinforced for Mr. Mullen that the police could use his statement at a future date. The audiotape also allows the trier of fact in this case to gauge the interaction between the police and Mr. Mullen – the pace of the conversation, everyone’s tone of voice, the extent to which any portions of the conversation were tense or heated, the ambiance in the room, and the ease with which Mr. Mullen communicated. It helps the trier of fact that Mr. Mullen’s initial interview with Detective Kelm was videotaped. Mr. Mullen’s attitude and demeanour at that time can be compared with what is heard on the audiotape from September 9, 2010.

[49] The real issue is that Mr. Mullen cannot be cross-examined by Defence counsel. The chief concern relates to Mr. Mullen’s credibility or sincerity. Of less concern are problems relating to perception, memory, or narrative. In that there is unchallenged evidence that Mr. Tsega told Connor and Alec Buchanan that he told the Toronto Three where Michael Swan lived, the key issue that Mr. Mullen’s statement addresses is whether Mr. Tsega told the Toronto Three about the location of Mr. Swan’s house and/or showed them the location of the house voluntarily or only after being threatened by them. This is not a complicated, detailed, or nuanced issue lending itself to errors in perception, memory problems, or miscommunication in narrative. If Mr. Mullen’s statement is admitted into evidence, the key challenge for the trier of fact is assessing Mr. Mullen’s credibility. With cross-examination being unavailable, getting to threshold reliability via this route is normally, but not always, barred (see R. v. Chretien, 2014 ONCA 403, at para. 58). This takes us to circumstantial guarantees of trustworthiness. With that avenue to threshold reliability, the inability to cross-examine is an issue going to weight; it is not a complete bar to admissibility (R. v. Biscette, 1996 CanLII 142 (SCC), [1996] 3 S.C.R. 599, at 599-600 and Naicker, at para. 29).

Circumstantial Guarantees of Reliability/Inherent Trustworthiness

[50] Some factors that could reduce the inherent trustworthiness of Mr. Mullen’s statements are the following:

• The statement was given approximately seven months after the events in question.

• The statement was given in response to information provided by the police officers.

• Mr. Mullen may have been motivated to implicate Sam Tsega in the offences due to a dislike he had for Mr. Tsega.

• Mr. Mullen, as an accomplice, may have been motivated to deflect responsibility away from himself and onto one or more of his accomplices.

[51] This interview occurred almost seven months after the events in question. This passage of time increases the risk that Mr. Mullen’s memory of the events in question could be faulty. That risk is reduced by a number of factors. There was only one issue – whether Sam Tsega had provided information to the Toronto Three and, if he did, whether he did so voluntarily or as a result of threats. This issue is not something that Mr. Mullen would likely get wrong due to a faulty memory. As well, Mr. Mullen offered details of the evening’s events for which there is corroboration from other witnesses or from real evidence, suggesting that his memory regarding that evening was still intact.

[52] In this interview, it was after the officers had played the Pizza Pizza calls from Sam Tsega’s mobile, placing Mr. Tsega with the Toronto Three on the night in question, and after the officers had explained their theory that Mr. Tsega had provided the Toronto Three with directions to Mr. Swan’s home, that Mr. Mullen was asked to comment. He declined to do so, aside from saying that he did not know Sam Tsega. When the police voiced the allegation that the Toronto Three had forced Mr. Tsega to give them information about Michael Swan’s house, Mr. Mullen simply said that they had not forced anyone – he provided the denial in such a way that it did not identify Mr. Tsega as the person who had provided the Toronto Three with information. When asked again if any of the Toronto Three had threatened Mr. Tsega, Mr. Mullen responded “definitely not … he’s just a kid”. It was only when there was a further follow-up question as to whether Mr. Tsega had provided information freely that Mr. Mullen agreed that he had, without saying what that information was.

[53] It is clear from the language and intonation used by Mr. Mullen that, at a certain point, he realized all of a sudden that it was Mr. Tsega who was alleging that the Toronto Three had forced him at gunpoint to provide them with information regarding Michael Swan; this allegation was not just part of a police theory. Mr. Mullen sounded surprised that Mr. Tsega would have said such a thing. He asked questions as to the circumstances in which this allegation was voiced. Almost immediately thereafter, Mr. Mullen opened up about Mr. Tsega’s involvement on the night in question. The flow of conversation in this regard was natural, and most of the information provided by Mr. Mullen about Mr. Tsega’s involvement was not in response to leading or suggestive questioning. Mr. Mullen provided much information that was new to the officers and that had, in no way, been suggested by them. That included that Mr. Tsega had previously lived in the Beaches area in Toronto, Mr. Tsega’s fear of Michael Swan’s suppliers, the Toronto Three’s visit inside the Jackson home, the layout of the Jackson home, and the presence of Joshua Jackson in the home at the time.

[54] The Defence argues that whatever Mr. Mullen said in response to Mr. Tsega’s allegation was a self-serving statement lacking in reliability. However, this situation is somewhat akin to that in R. v. Edgar, 2010 ONCA 529, 101 O.R. (3d) 161, at para. 72 (leave to appeal refused, [2010] S.C.C.A. No. 466), where the Ontario Court of Appeal stated, in regard to a spontaneous denial by an accused, that:

… it is open to a trial judge to admit an accused’s spontaneous out-of-court statements made upon arrest or when first confronted with an accusation as an exception to the general rule excluding prior consistent statements as evidence of the reaction of the accused to the accusation and as proof of consistency, provided the accused takes the stand and exposes himself or herself to cross-examination. … the statement of the accused is not strictly evidence of the truth of what was said (subject to being admissible under the principled approach to hearsay evidence) but is evidence of the reaction of the accused, which is relevant to the credibility of the accused and as circumstantial evidence that may have a bearing on guilt or innocence.

[55] This conclusion is based on the belief that a person’s spontaneous reaction, when confronted with an accusation, will often have significant probative value (Edgar, at paras. 65-68). The Ontario Court of Appeal went on to state that it is a ridiculous proposition to suggest that anything an accused person says when confronted with accusations will be suspect as self-serving statements. Such an argument assumes all accused people are guilty and what they say in response to accusations will be fabricated (para. 69). (See also R. v. Liard, 2015 ONCA 414, 338 O.A.C. 104, at para. 49.)

[56] Mr. Mullen’s reaction to the allegation was spontaneous and direct, and this adds reliability to what he said (Edgar, at para. 65). Although the statement was made months after Mr. Mullen’s arrest, the evidence is that this particular allegation of the Toronto Three threatening Mr. Tsega had never been disclosed to any of the Toronto Three prior to September 9, 2010. Mr. Mullen’s statement was an immediate response on the first occasion the allegation was made. Therefore, there was no possibility of collusion or collaboration prior to Mr. Mullen responding to the allegation.

[57] There is no evidence that Mr. Mullen held any grudges or negative animus toward Sam Tsega. Until this interview, Mr. Mullen had never mentioned Mr. Tsega’s name to the police and had never implicated Mr. Tsega in the offences in any respect. This is consistent with Mr. Mullen’s obvious attitude in this interview, and in his other police interviews, that he was not going to be a “rat” in regard to any of his alleged accomplices. I acknowledge that in the latter portion of the interview, Mr. Mullen referred to Mr. Tsega as “a fuckin’ rich little weirdo” and “a little punk fuckin’ beacher kid that’s rich”; however, this was after the officers had been pressing Mr. Mullen with Mr. Tsega’s allegations regarding the threat and had been reminding Mr. Mullen that Dylon Barnett was a good friend of both Sam Tsega and Kristopher McLellan and the person likely to be the loser in this scenario was Mr. Mullen.

[58] I consider it relevant that after Mr. Mullen was confronted with Mr. Tsega’s allegation that the Toronto Three forced him to divulge information about Michael Swan, Mr. Mullen was clearly struggling to understand why Mr. Tsega would do that. He wondered whether the friends Mr. Tsega had made the allegations to, namely Connor and Alec Buchanan, had come up with the story about Mr. Tsega being threatened in order to protect Mr. Tsega or whether Mr. Tsega had come up with the story himself to protect himself against Mr. Swan’s friends and the police. In doing this, Mr. Mullen was not going out of his way to be critical of Mr. Tsega. This is further evidence suggesting that he lacked a motive to harm Mr. Tsega.

[59] Nevertheless, it cannot be said that there is a proven absence of a motive to fabricate. In Czibulka, at paras. 43-44, Rosenberg J.A. provided the following guidance regarding the interrelationship between motive to fabricate and threshold reliability:

First, the Crown may be able to show that the declarant had no known motive to fabricate the hearsay story to this witness about this accused. Khan and Smith (in respect of the first two statements) were such cases. Conversely, the circumstances may be such that either because of direct evidence or logical inference it is apparent that the declarant did have a motive to fabricate this story. Starr and the third call in Smith would seem to be such cases. Or, the case may be one where there is simply no evidence and no logical inference that the declarant had no motive to lie. In the last scenario, motive is in effect a neutral consideration. Because it is for the proponent of the hearsay evidence to show that it was made under circumstances of trustworthiness, if there are few other compelling circumstances of reliability the application to admit the hearsay statement will probably fail. If there are other indicia (and for example in Khan there were many others) the statement may or may not be admitted depending on the strength of those other factors on the reliability issue.

Lack of evidence of motive to fabricate is not equivalent to proved absence of motive to fabricate. In other words, a finding that there is simply no evidence one way or the other that the declarant had a motive to fabricate cannot be converted into a finding in favour of the proponent that the declarant had no motive to fabricate. [footnote omitted]

[60] The argument that Mr. Mullen, as an accomplice, may have been motivated to deflect liability from himself onto one of his accomplices falls flat. There is nothing Mr. Mullen stated about Mr. Tsega which would have reduced Mr. Mullen’s culpability in regard to the murder of Mr. Swan at Mr. Tsega’s expense. On the contrary, his evidence about the level of planning that went into the home invasion, if anything, could have increased Mr. Mullen’s culpability in that regard. Mr. Mullen minimized his allegations regarding Mr. Tsega to only those necessary to rebut Mr. Tsega’s allegation that he had been forced at gunpoint to provide information regarding Mr. Swan. Mr. Mullen’s chief concern throughout the interview was whether he would be labelled the shooter; Mr. Tsega’s allegation regarding a threat was a peripheral matter which Mr. Mullen appeared to consider an additional insult but not his primary concern.

[61] In this case, I see the question of motive as being essentially neutral. There is evidence suggesting that Mr. Mullen had no motive to harm Mr. Tsega. On the other hand, the officers were putting to Mr. Mullen an allegation which, if proven, could have resulted in further criminal charges being laid against him. Mr. Mullen could have been motivated to lie to avoid criminal responsibility for any threats against Mr. Tsega. Despite this possibility, there are numerous factors which support a finding of threshold reliability, including those already discussed, the generally inculpatory nature of the September 2010 statement in regard to the murder, and, most importantly, the existence of corroborating evidence.

[62] In regard to the generally inculpatory nature of Mr. Mullen’s statement, the statement does not fall squarely under the category of a statement against penal interest as an exception to the hearsay rule. To do so, the following requirements must be met:

• The declaration is made in such circumstances that the declarant should have apprehended a vulnerability to penal consequences as a result. That exists here.

• The vulnerability to penal consequences cannot be remote. That exists here.

• The declaration sought to be given in evidence must be considered in its totality. If upon the whole tenor the weight is in favour of the declarant, it is not against his interest. The weight of the statement is inculpatory in regard to the murder of Michael Swan, though exculpatory in regard to any threat against Mr. Tsega.

• In a doubtful case a court might properly consider whether or not there are other circumstances connecting the declarant with the crime and whether or not there is any connection between the declarant and the accused. Mr. Mullen has been convicted of Mr. Swan’s murder, and there is significant evidence connecting Mr. Mullen and Mr. Tsega.

• The declarant is unavailable by reason of death, insanity, or grave illness which prevents the giving of testimony even from a bed, or absence in a jurisdiction to which none of the processes of the court extends. A declarant would not be unavailable where he or she refuses to testify. Mr. Mullen is not ‘unavailable’.

(Paciocco & Stuesser, at 175; R. v. O’Brien, 1977 CanLII 168 (SCC), [1978] 1 S.C.R. 591, at 599; R. v. Lucier, 1982 CanLII 153 (SCC), [1982] 1 S.C.R. 28, at 32.)

[63] Despite Mr. Mullen’s statement not meeting the requirements of a statement against penal interest, much of what Mr. Mullen said during the September 9, 2010 interview about the events of February 21-22, 2010 was inculpatory regarding his involvement in the murder of Michael Swan, and this boosts its trustworthiness. He acknowledged that he, Mr. McLellan, and Mr. Barnett came to Ottawa to do a home invasion for marijuana and cash. He acknowledged being in Mr. Swan’s home looking for drugs and money when the murder occurred. He provided additional details of how events transpired in Mr. Swan’s home. He acknowledged arming himself with a bat and he provided a detailed description of it. Much of what Mr. Mullen stated in this regard is not disputed at this trial and admissions or evidence corroborate it.

[64] The following evidence of Mr. Mullen is corroborated in whole or in part by other evidence or admissions, as shown in the brackets.

• Mr. Tsega had lived in the Beaches area of Toronto prior to moving to Ottawa (the evidence of Susan Jackson, Joshua Jackson, and Alec Buchanan).

• Mr. Tsega had a close friendship with Mr. Barnett (the evidence of Joshua Jackson, Susan Jackson, Garrett Butler, and Connor Buchanan; and an admission).

• Mr. Tsega also knew Mr. McLellan (the evidence of Joshua Jackson and Susan Jackson; the statement of Kristopher McLellan; and an admission).

• Mr. Mullen had no previous relationship with Sam Tsega (the statement of Kristopher McLellan).

• Mr. Mullen was a last minute addition to the Toronto Three (the statement of Kristopher McLellan).

• Mr. Tsega ordered pizza for the Toronto Three while they were en route to Ottawa (Mr. Tsega’s text messages, the Pizza Pizza calls, the evidence of Garrett Butler, and the statement of Kristopher McLellan).

• Mr. Tsega told the Toronto Three where Mr. Swan lived (the evidence of Tyler and Connor Buchanan and Kaitlyn Scott as to Mr. Tsega’s knowledge of Michael Swan’s residence and his drug dealing; and the evidence of Connor and Alec Buchanan as to what Mr. Tsega told them).

• After Mr. Tsega allegedly pointed out Michael Swan’s house to the Toronto Three, they drove him back home (the statement of Mr. McLellan).

• The Toronto Three went into Sam Tsega’s home (the evidence of Joshua Jackson, Connor Buchanan, and Alec Buchanan; the statement of Kristopher McLellan; and the evidence of Detective Gordon in regard to the layout of the home).

• When the Toronto Three went into Sam Tsega’s home, Joshua Jackson and his girlfriend were watching a hockey or football game on the television (the evidence of Joshua Jackson and the statement of Kristopher McLellan).

• When the Toronto Three were in Sam Tsega’s home, Dylon Barnett and Joshua Jackson spoke briefly to each other, but Mr. Mullen did not speak with Mr. Jackson (the evidence of Joshua Jackson and the statement of Kristopher McLellan).

• No threats were made against Sam Tsega when the Toronto Three were in his home (the statement of Kristopher McLellan and, additionally, some confirmation may be found in the text messages between Mr. Tsega and Dylon Barnett following the murder (Tab 16), the evidence of Joshua Jackson, and the intercepted telephone conversations between Sam Tsega and Susan Jackson).

• Mr. Tsega gave the Toronto Three a couple of black sweaters, two pairs of gloves, two masks, and a scarf (the black sweaters, gloves, and mask recovered from the Toronto Three upon arrest; the statement of Kristopher McLellan regarding Mr. Tsega having lent him a black sweater; evidence that one of the black sweaters had the Ohio State logo on it; and Connor Buchanan’s evidence that Mr. Tsega’s sister attended Ohio State University).

• Mr. Tsega was afraid of Michael Swan’s friends (the evidence of Joshua Jackson and Susan Jackson).

• When the Toronto Three were in Michael Swan’s bedroom, Mr. Swan’s dogs were sitting on the couch and were obviously frightened (the evidence of Tyler Vergette).

• Mr. Mullen picked up a bat in Michael Swan’s house but did not use it (the bat and the evidence of Tyler Tanguay).

• Mr. Mullen did not have possession of a gun when he was in Michael Swan’s house (the evidence of Mr. Tanguay).

• Mr. Mullen was not the shooter (an admission).

[65] Confirmatory evidence need not directly implicate the accused or confirm the Crown witness’s evidence in every respect, but the evidence should be capable of restoring the trier of fact’s faith in the relevant aspects of the witness’s account (Kehler, at paras. 12-13, 15-16).

[66] To be confirmatory, evidence should give comfort that the witness can be trusted. The attribute of independence defines the kind of evidence that can provide comfort that the witness can be trusted. Evidence that is tainted by connection to the witness cannot serve to confirm his or her testimony. Here, the evidence listed above that corroborated Mr. Mullen’s version of events was independent. Confirmatory evidence does not have to implicate the accused but, in the context of the case as a whole, it should give comfort that the witness was truthful in relevant aspects of his or her account (Khela, at paras. 11, 32, 39-40, 42-43). Mr. Mullen’s statement regarding Mr. Tsega’s involvement is logical, internally consistent, and consistent with the direct and circumstantial evidence heard to date.

[67] The evidence of one suspect witness can confirm the evidence of another suspect witness, though not if the witnesses had colluded (Linklater). Here, there was no opportunity for Mr. Mullen to collude with Mr. McLellan, or anyone else, prior to his responding to Mr. Tsega’s allegation that he had been threatened by the Toronto Three to divulge the location of Mr. Swan’s house.

[68] As will be discussed further below, there was an opportunity for collusion or collaboration between Mr. McLellan and Mr. Mullen between the September 9 and the November 16, 2010 statements. I am not convinced, at this time, that there was actual collusion or collaboration tainting Mr. McLellan’s evidence. That will be something going to ultimate reliability of both statements. But even putting aside the potential corroboration that can be provided to Mr. Mullen’s statement by Mr. McLellan’s statement, there remains significant corroborating evidence from other sources.

[69] The circumstances in which the statement was made, the variety of confirmatory evidence and the multiple sources of such evidence support a finding that Mr. Mullen’s statement passes the test for threshold reliability.

Issues Relating to Police Conduct

[70] The Defence argued that threshold reliability could not be found in regard to Mr. Mullen’s statement due, in part, to concerns regarding voluntariness.

[71] As outlined in R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, some of the factors to be considered by the court in regard to the voluntariness of a statement include whether the police made any threats or promises; whether the circumstances in which the statement was made were oppressive; whether the accused had an operating mind when the statement was made; and whether the police used trickery in order to get the accused to make the statement. In assessing threshold reliability, one consideration is whether the statement was voluntarily given. If an interrogator holds out to an accused the hope of an advantage if the accused testifies, such as the prospect of leniency from the courts, this can amount to an inducement (R. v. N.T.A., 2002 BCCA 103, 164 B.C.A.C. 185).

[72] The circumstances in which Mr. Mullen made his September 9, 2010 statement were not in any way oppressive. No threats were made. It is clear from the audiotape of the interview that, at all times, Mr. Mullen had an operating mind and chose when to answer questions and how much to say. Of particular concern to the Defence was the message given to Mr. Mullen by the officers to the effect that, if he was not the shooter, it would go better for him in court if he identified who the shooter was. The officers told Mr. Mullen that there were different levels of responsibility or culpability under the heading of “murder” and that, whoever was the shooter, would likely be dealt with more harshly by a judge and jury than a person who was merely present when the shooting occurred. It is arguable that these statements went over the line as to what is permissible police questioning. That being said, I conclude that these statements by the officers had no impact on the subsequent discussion regarding Mr. Tsega’s involvement in the offences and on the trustworthiness of Mr. Mullen’s statement in that regard.

[73] The officers stated on a few occasions that Mr. Mullen, Mr. McLellan, and Mr. Barnett had all been charged with murder, and they would all be tried for murder. Mr. Mullen indicated his understanding that this was the case, even though only one of them had pulled the trigger. When emphasizing to Mr. Mullen that there is always a risk for an accused when he is one of three potential shooters, the police were merely stating the obvious. This was not new information for Mr. Mullen.

[74] The pressure being placed on Mr. Mullen was to speak up so as to reduce how long he may have to spend in prison if he was not the shooter. The officers did not express this concept accurately, implying that the shooter would be sentenced to 25 years and the others would be sentenced to a shorter period. Everyone convicted of murder is sentenced to life in prison and the only issue is when he may be eligible to apply for parole. I do not attribute bad faith to the officers in expressing the sentencing differences between first and second degree murder in an inaccurate fashion. I conclude that the officers were using a shorthand that is frequently, and unfortunately, resorted to, even though inaccurate. In any event, their inaccurate message to Mr. Mullen had no noticeable effect on him. He chose not to “give up” the shooter. He simply asserted that he did not have a gun on him when he was in Michael Swan’s house, and he was not the shooter.

[75] When the officers turned to Sam Tsega’s involvement in the offence, they were turning the page to a new topic. This shift happened a few times during the interview. I see no indication that the earlier statements of the officers regarding possible sentences had any carry over impact when the discussion turned to Mr. Tsega’s alleged involvement. I note that at one point the officers suggested to Mr. Mullen that, if it was proven that the Toronto Three had threatened to kill Mr. Tsega and his family, then a jury might believe the Toronto Three were more likely to have planned the murder of Mr. Swan. That insertion in the discussion led to no change in Mr. Mullen’s consistent message that he was not the shooter and that no one had threatened Mr. Tsega. In any event, it was again simply stating the obvious.

[76] This is not a voluntariness application, and the Crown is not seeking to tender Mr. Mullen’s statement as against him. The voluntariness of the statement is simply one factor to consider in the threshold reliability analysis. There is no significant factor suggesting Mr. Mullen’s statement was not voluntary. In Oickle, at para. 57, Iacobucci said: “… [t]he most important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless of whether it comes in the form of a threat or a promise.” Aside from conveying the obvious, that if Mr. Mullen was not the shooter, his ultimate period of incarceration may be less than that imposed on the shooter, the police did not offer a quid pro quo for Mr. Mullen’s cooperation.

[77] In R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, McLachlin C.J. and Charron J. stated, at para. 53: “Where a detainee has already retained legal advice, the implementational duty on the police under s. 10(b) of the Charter includes an obligation to provide the detainee with a reasonable opportunity to consult counsel again where a change of circumstances makes this necessary to fulfill the purpose of s. 10(b) of the Charter of providing the detainee with legal advice on his choice of whether to cooperate with the police investigation or decline to do so.”

[78] During Mr. Mullen’s September 9, 2010 interview, Detective Gordon and Sergeant Simser provided Mr. Mullen with two new pieces of information that arguably meant that Mr. Mullen should have been reminded of (1) his right to remain silent, (2) his right to consult counsel, and (3) that anything he said could be used against him in a court of law. First, Mr. Mullen was advised that the ballistics analysis proved beyond doubt that the Sig Sauer found in his possession at the time of arrest was the murder weapon. Second, Mr. Mullen was advised that Sam Tsega was alleging that he had been threatened at gun point by the Toronto Three, thereby raising the prospect that, whatever happened with the murder charge, Mr. Mullen could be charged with the offence of threatening. The failure of the officers to provide these cautions and to provide Mr. Mullen with the opportunity of consulting counsel before responding to any further questions may have impacted on the use, if any, which the Crown could have made of Mr. Mullen’s statement against Mr. Mullen himself. However, this conduct on the part of the officers does not significantly impact on my assessment of the threshold reliability of Mr. Mullen’s statement in regard to Mr. Tsega. Nor do I conclude that the admissibility of Mr. Mullen’s statement would be unfair to Mr. Tsega.

[79] In conclusion, admission of Mr. Mullen’s September 9, 2010 statement will not impact negatively on trial fairness or the truth-seeking function of the trial due to the circumstantial guarantees of the reliability of the statement.

Kristopher McLellan’s Statement to Detectives Gordon and McIntosh November 16, 2010

Background Context

[80] Prior to his conviction for the first degree murder of Michael Swan, Mr. McLellan had five previous criminal convictions, one for manslaughter and break and enter when he was a young offender. Like Mr. Mullen, Mr. McLellan was not a neophyte in the criminal justice system.

[81] Following his arrest on the morning of February 22, 2010, Mr. McLellan was given all of the standard cautions and he had the opportunity to speak to counsel prior to being interviewed by Detective Rick McIntosh, starting at 20:24.

[82] Detective McIntosh gave Mr. McLellan the standard secondary caution and confirmed that Mr. McLellan had spoken to counsel and was under no obligation to answer any questions. Mr. McLellan was obviously upset – particularly when he spoke of his girlfriend and then, subsequently, when he spoke of his relationship with Dylon Barnett and the Barnett family. Mr. McLellan denied that he had ever had a gun in his hand that evening. Otherwise, he was not prepared to answer any questions relating to the events of that night. He said he would wait until disclosure and then perhaps he and his lawyer would speak to the police. When Detective McIntosh kept pressuring him to explain what had happened, Mr. McLellan closed down, putting his head on the desk, banging his hand on the desk, and asking to be taken back to his cell. He became angry and frustrated. He asserted his right to silence numerous times and said repeatedly that he was done talking.

[83] As mentioned above, Kyle Mullen and Kristopher McLellan were both housed at the Lindsay Jail pending trial. By September 9, 2010, their lawyers had received only the first disclosure package which included the statements of the witnesses inside the house, as well as the statements of each of the Toronto Three. No disclosure had yet been made to the Toronto Three about the statements given to police by Connor and Alec Buchanan in April 2010.

[84] On September 9, 2010, Detective Gordon and Sergeant Simser conducted an audiotaped interview of Kristopher McLellan at the Lindsay Jail. They told him that the purpose of the visit was to run some things by him and to speak to him about Sam Tsega. The officers played the Pizza Pizza audiotapes and advised Mr. McLellan that the Sig Sauer gun had been identified as the murder weapon. Detective Gordon suggested to Mr. McLellan that it was possible that Dylon Barnett and Sam Tsega might collude on a version of events that would reflect better on them than Mr. McLellan. Mr. McLellan did not bite and did not volunteer any new information. The tone of the conversation between the three men was conversational, pleasant, and non-confrontational. The officers purposely did not tell Mr. McLellan about the statements that had been made by Connor and Alec Buchanan, preferring to have Mr. Mullen aware of them and Mr. McLellan not in the loop to see if that stimulated any chatter on the wires that were still in place.

The November 16, 2010 Statement

[85] On November 16, 2010, Detectives Gordon and McIntosh interviewed Mr. McLellan at the Lindsay Jail. The ostensible reason for their visit was to serve Mr. McLellan with a notice of the interception of his private communications – service that could have been effected on his counsel. The real reason for the visit was to see if he had anything further to say.

[86] After Mr. McLellan had been served with the intercept documents, and without any prompting by the officers, he initiated a conversation by saying: “so what’s new, guys”. The officers advised Mr. McLellan that the Sig Sauer used to kill Michael Swan was connected to another homicide and another shooting in Toronto in 2006. Mr. McLellan advised that he had been incarcerated that entire year. At this point, Mr. McLellan was given a secondary caution and he was reminded that he did not need to say anything to the officers. The officers confirmed that he had spoken to his lawyer a few times.

[87] The officers advised Mr. McLellan that the only real issue from their perspective was the role Sam Tsega may have played in the events of February 21-22, 2010. They told Mr. McLellan that Mr. Tsega was saying that he did not know Mr. McLellan and that the Toronto Three had forced him into participating by holding a gun to his head and threatening to kill him and his family. Mr. McLellan was aware that someone had made that allegation because he had seen some disclosure in which this had been stated, but Sam Tsega’s name had been blacked out at the time. He had not yet seen the second disclosure package that had been delivered to his lawyer. However, Mr. McLellan understood that the police had spoken to Kyle Mullen about Sam Tsega during their interview on September 9, 2010.

[88] Mr. McLellan went on to volunteer the following information of relevance to Mr. Tsega and, for most of it, there is evidence from other sources that is corroborative in whole or in part, as indicated in brackets:

• Mr. McLellan and Mr. Tsega knew each other from Gledhill Public School (an admission; and the evidence of Joshua Jackson and Susan Jackson).

• Mr. McLellan, Mr. Tsega, and Mr. Barnett were on Gledhill’s basketball team.

• There were text messages between Mr. Tsega and the Toronto Three on the night in question during which Mr. Tsega was giving the Toronto Three directions (text messages and telephone records, the evidence of Joshua Jackson, and the statement of Kyle Mullen).

• Dylon Barnett’s birthday is in June – not February.

• Sam Tsega had gone to Toronto and was laying low at Dylan Barnett’s house because he had crashed his mother’s minivan into a Quickie Mart. He had dropped his licence plate, and the police had gone to his home to investigate the accident (all of the evidence relating to the accident at the Mac’s Milk in Barrhaven involving Susan Jackson’s car; an admission regarding Mr. Tsega being in Toronto at this time period; and the telephone records of Mr. Tsega).

• Sam Tsega had gone to Toronto at Christmastime 2009 (the evidence of Susan Jackson; and the telephone records of Mr. Tsega).

• While Mr. McLellan was hanging out with Mr. Barnett and Mr. Tsega at Mr. Barnett’s house, Mr. Tsega had said that he knew a guy that had lots of weed and money and Mr. McLellan and Mr. Barnett should rob him (the evidence of Connor and Tyler Buchanan regarding Mr. Tsega knowing Michael Swan and being at parties at Michael Swan’s home at which time he saw marijuana and money; and the evidence of Kaitlyn Scott about Mr. Tsega being at Michael Swan’s home).

• On February 21, 2010, Mr. McLellan received a text or a call from Mr. Barnett saying that he had been in touch with Mr. Tsega and it was a good night to commit the robbery. This came up all of a sudden. Mr. McLellan was supposed to drive his girlfriend, Brittany Barnett, to school the next morning (telephone records from February 21, 2010 regarding texts and calls between Mr. Barnett and Mr. Tsega, between Mr. Barnett and Mr. McLellan, and between Mr. McLellan and Brittany Barnett).

• It was the first time Mr. McLellan had ever been to Ottawa.

• The Toronto Three were hungry, so they told Mr. Tsega to order pizza. He had at first ordered it to his friend’s home, but they were not allowed there, so they left and went to Mr. Tsega’s home. Mr. Tsega was in Mr. McLellan’s vehicle at that time with Mr. Barnett and Mr. Mullen (Pizza Pizza calls; the evidence of Garrett Butler; the statement of Kyle Mullen; the pizza boxes and garbage in the vehicle from which the Toronto Three were arrested; and the telephone records from Sam Tsega and Dylon Barnett).

• Mr. Tsega went with the Toronto Three in Mr. McLellan’s vehicle to show them where Mr. Swan’s residence was (the statement of Kyle Mullen).

• The Toronto Three dropped off Mr. Tsega back at his own home (the statement of Kyle Mullen).

• The Toronto Three went into the home briefly (the evidence of Joshua Jackson and Connor and Alec Buchanan; and the statement of Kyle Mullen).

• Mr. Tsega’s brother and girlfriend were at Mr. Tsega’s home. Everything was calm (the evidence of Joshua Jackson and the statement of Kyle Mullen).

• Mr. Tsega gave Mr. McLellan and Mr. Mullen black hoodies to wear. Mr. Tsega may have given a tuque or something to someone, but Mr. McLellan could not remember (the items recovered from the vehicle and on the person of the Toronto Three; the statement of Kyle Mullen; the evidence of Connor Buchanan that Sam Tsega’s sister attended Ohio State University; and an admission).

• Mr. McLellan used the bathroom at Mr. Tsega’s home because he had a stomach ache (the evidence of Joshua Jackson).

• What Mr. Tsega was saying about being threatened by the Toronto Three, and particularly by Mr. McLellan, was a lie (the text messages between Sam Tsega and Dylon Barnett after the murder; the evidence of Joshua Jackson; the telephone intercept August 10, 2010 between Sam Tsega and Susan Jackson; and the statement of Kyle Mullen).

• The Toronto Three then left and went to Mr. Swan’s home (the statement of Kyle Mullen).

• Sam Tsega knew people at Michael Swan’s place (the evidence of Kaitlyn Scott, Connor Buchanan, and Tyler Buchanan).

Aftermath of the Statement

[89] Mr. McLellan went on to testify at his own trial on October 15, 2013 and described Mr. Tsega’s alleged involvement in the events of February 21-22, 2010 in greater detail. Although there were some minor differences in what Mr. McLellan said at his trial when compared to the November 16, 2010 statement, the chronology of events described by Mr. McLellan and Mr. Tsega’s alleged involvement in the events were the same.

Analysis

[90] Defence counsel argues that the following features of the interview between Detectives Gordon and McIntosh and Mr. McLellan on November 16, 2010 should result in this statement of Mr. McLellan not being admitted pursuant to the principled exception to the hearsay rule:

• At the commencement of the interview, Detectives Gordon and McIntosh did not remind Mr. McLellan of his right to remain silent, his right to counsel, and that anything he said could be used against him in court. They only provided a secondary caution.

• The officers attempted to pit Mr. McLellan against Mr. Tsega.

• In the absence of cross-examination, any issues relating to Mr. McLellan’s perception, memory, or credibility cannot be explored.

• Mr. McLellan is an accomplice and may have been motivated to deflect responsibility away from himself and on to one of his accomplices.

• Something Detective Gordon or Detective McIntosh said to Mr. McLellan may have acted as an inducement for him to provide the evidence he did.

• Mr. McLellan’s statement may have been the product of collaboration or collusion with Mr. Mullen.

Ability of Trier of Fact to Assess the Truth and Accuracy of the Statement

[91] Some of the dangers inherent in admitting Kristopher McLellan’s statement of September 9, 2010 arise from the following:

• The statement was not made under oath and no warning was given to Mr. McLellan about the importance of telling the truth and the criminal sanctions that could apply if he were to lie.

• The statement was not videotaped and therefore Mr. McLellan’s demeanour throughout cannot be observed.

• No cross-examination of Mr. McLellan occurred at the time he made the statement.

• There could be problems with Mr. McLellan’s perception, memory, narration, or credibility that cannot be explored without the opportunity for cross-examination at trial.

[92] Although Mr. McLellan was not warned by Detectives Gordon and McIntosh that it was important that he tell the truth and that anything he said could be used against him, and others, in court, I am satisfied that Mr. McLellan fully appreciated this. Like Mr. Mullen, Mr. McLellan was not a neophyte in the criminal justice system and was well aware that anything that he said during interviews with police officers could be used against him in court. He had been arrested and interviewed by police officers on numerous occasions in the past. More specifically, when first interviewed by Detective McIntosh following his arrest for these offences, Mr. McLellan was reminded of the rights that had been read to him upon arrest, and he was given a secondary caution. He confirmed that he had already spoken to his lawyer. The November 16, 2010 interview was the third interview that Mr. McLellan had had with the police in regard to these offences and, on each occasion, he had been told that he did not need to speak with the police officers. At the commencement of the November 16, 2010 interview, Detective McIntosh again gave Mr. McLellan a secondary caution, advised him that he did not have to say anything, and confirmed that he had spoken to his lawyer a few times. The seriousness of the occasion was brought home to Mr. McLellan.

[93] As well, it was clear from the way Mr. McLellan was speaking about Mr. Tsega’s involvement in the events in question, that he was aware that what he said about Mr. Tsega could result in Mr. Tsega being charged with a criminal offence. In fact, during all of his interviews with police officers during the course of this investigation, Mr. McLellan was careful not to implicate anyone other than himself and only implicated Mr. Tsega reluctantly in response to Mr. Tsega allegation that Mr. McLellan had threatened him and his family. I am satisfied that Mr. McLellan appreciated the importance of telling the truth about Mr. Tsega, despite Mr. McLellan’s statement not being under oath and his not being specifically advised of the criminal ramifications if he were to lie.

[94] Although the statement was not videotaped, it was audiotaped. This is another factor which reinforced for Mr. McLellan that the police could use his statement at a future date. The audiotape also allows the trier of fact in this case to gauge the interaction between the police and Mr. McLellan – the pace of the conversation, everyone’s tone of voice, the extent to which any portions of the conversation were tense or heated, the ambiance in the room, and the ease with which Mr. McLellan communicated. It helps the trier of fact that Mr. McLellan’s initial interview with Detective McIntosh was videotaped. Mr. McLellan’s attitude and demeanour at that time can be compared with what is heard on the audiotape from November 16, 2010.

[95] The real issue is that Mr. McLellan cannot be cross-examined by Defence counsel. The chief concern relates to Mr. McLellan’s credibility or sincerity. Of less concern are problems relating to perception, memory, or narrative. Much of what Mr. McLellan said about Mr. Tsega has been the subject of other evidence already heard. The key point of controversy is whether Mr. Tsega told the Toronto Three about the location of Mr. Swan’s house and/or showed them the location of the house and whether he did so voluntarily or as a result of being threatened by them. As mentioned above, this is not a complicated, detailed, or nuanced issue lending itself to errors in perception, memory problems, or miscommunication in narrative. If Mr. McLellan’s statement is admitted into evidence, the key challenge for the trier of fact is assessing Mr. McLellan’s credibility. Cross-examination would be the key mechanism to accomplish this but is unavailable. With all of the formal procedural safeguards missing, threshold reliability can only be achieved through circumstantial guarantees of trustworthiness.

Circumstantial Guarantees of Reliability/Inherent Trustworthiness

[96] Some factors that could reduce the inherent trustworthiness of Mr. McLellan’s statements are the following:

• The statement was given approximately nine months after the events in question.

• The statement was given in response to information provided by the police officers and previously disclosed through counsel.

• Mr. McLellan may have been motivated to implicate Sam Tsega in the offences due to a dislike he had for Mr. Tsega.

• Mr. McLellan, as an accomplice, may have been motivated to deflect responsibility away from himself and onto one or more of his accomplices.

• Mr. McLellan may have colluded with Mr. Mullen prior to providing the November 16, 2010 statement.

[97] This interview occurred almost nine months after the events in question. This passage of time increases the risk that Mr. McLellan’s memory of the events in question could be faulty. That risk is reduced by a number of factors. There was only one key question – whether Sam Tsega had provided information to the Toronto Three and whether he did so voluntarily or as a result of threats. This issue is not something that Mr. McLellan would likely get wrong due to a faulty memory. As well, as already referenced above, Mr. McLellan offered details of the evening’s events for which there is corroboration from other witnesses or from real evidence, suggesting that his memory regarding that evening was still intact.

[98] When confronted with Mr. Tsega’s allegations, Mr. McLellan was very reluctant to provide details of Mr. Tsega’s involvement in the events of February 21-22, 2010. Initially, all he would volunteer was mild information, such as the two of them having gone to public school together and being on the same basketball team with Dylon Barnett. When pressed by Detective McIntosh, Mr. McLellan’s response was that Mr. Mullen would have told them about Mr. Tsega’s involvement on September 9, 2010. When Detective McIntosh suggested that Mr. Mullen’s evidence might not be believed without corroboration, Mr. McLellan still resisted saying anything damaging about Mr. Tsega. He suggested that the police check text messages from the night – especially those relating to someone giving the Toronto Three directions. When pressed further, Mr. McLellan still held off saying anything against Mr. Tsega and said the truth would come out at trial. It was only when the police said that that was unlikely that Mr. McLellan decided to provide his version of events, including information about which the police had no knowledge. He did so reluctantly, acknowledging that he should probably not say anything.

[99] This interchange revealed factors that both increased and reduced the inherent reliability of the statement. On the one hand, Mr. McLellan knew that Mr. Mullen had already spoken to the police about Mr. Tsega’s participation in the events of the day, raising the possibility of collusion between Mr. McLellan and Mr. Mullen regarding the role Mr. Tsega played. On the other hand, Mr. McLellan made it clear he did not want to be a rat in regard to anyone – including Mr. Tsega.

[100] Mr. McLellan reiterated that he was not the shooter, but he refused to say who the shooter was if not him. He would not even say who was in his truck when he went from Garrett Butler’s home to Sam Tsega’s home in order to get the pizza. He was not going out of his way to implicate anyone else in the events of that day.

[101] Mr. McLellan’s statement does not have the added feature of spontaneity that Mr. Mullen’s statement has. Mr. McLellan had been made aware of Mr. Tsega’s allegations prior to the November 16, 2010 interview, though he had not yet had the benefit of full disclosure in this regard. He was waiting for that at the time of his next visit with his lawyer. Nevertheless, he had had a chance to think about his response to the allegation of his threatening Mr. Tsega. He was also aware that Mr. Mullen had made a statement to the police officers on September 9, 2010 denying Mr. Tsega’s allegations. That signals that Mr. McLellan and Mr. Mullen likely had some conversation following their September 9, 2010 interviews. This means that there had been some opportunity for Mr. McLellan’s statement to have been influenced by Mr. Mullen. I will come back to that in a moment.

[102] The tenor of the conversation between the officers and Mr. McLellan was pleasant and easy-going. There was a natural flow to the dialogue. Mr. McLellan seemed to want to interact and get information from the officers. It was clear that he realized that he did not have to say anything to them. He made a conscious decision as to what he would and would not say. The officers just told Mr. McLellan what they had been told by others, and they invited his comments. The information Mr. McLellan provided about Mr. Tsega’s involvement was, with some exceptions, not elicited through leading questions. In fact, some of the information he provided had previously been unknown to the police. The officers held out no inducements or promises to Mr. McLellan and made no threats. They were clear with Mr. McLellan that the evidence pointed to him as the shooter.

[103] As with Mr. Mullen, the Defence argues that whatever Mr. McLellan said in response to Mr. Tsega’s allegation was a self-serving statement lacking in reliability. However, the fact that a person denies an allegation made against him does not automatically mean that the denial is unreliable. When most of what the person states is corroborated by other evidence, the denial is more likely than not to have some level of reliability.

[104] There is no evidence that Mr. McLellan held any grudges or negative animus toward Sam Tsega. They had been childhood acquaintances. The evidence of Mr. McLellan was that, as adults, they had hung out together in Toronto, along with Mr. Barnett. Until the November 16, 2010 interview, Mr. McLellan had never mentioned Mr. Tsega’s name to the police and had never implicated Mr. Tsega in the offences in any respect. This is consistent with Mr. McLellan’s obvious attitude in this interview, and in his other police interviews, that he was not going to be a “rat” in regard to any of his alleged accomplices. In the November 16, 2010 interview, Mr. McLellan was clearly reluctant to say anything about Mr. Tsega, and was worried about doing so.

[105] The argument that Mr. McLellan, as an accomplice, may have been motivated to deflect liability from himself onto one of his accomplices falls flat. There is nothing Mr. McLellan stated about Mr. Tsega which would have reduced Mr. McLellan’s culpability in regard to the murder of Mr. Swan at Mr. Tsega’s expense. On the contrary, his evidence about the level of planning that went into the home invasion, if anything, could have increased Mr. McLellan’s culpability in that regard. Mr. McLellan minimized his allegations regarding Mr. Tsega to only those necessary to rebut Mr. Tsega’s allegation that he had been forced at gunpoint to provide information regarding Mr. Swan.

[106] In this case, I see the question of motive as being essentially neutral. There is evidence suggesting that Mr. McLellan had no motive to harm Mr. Tsega. On the other hand, the officers were putting to Mr. McLellan an allegation which, if proven, could have resulted in further criminal charges being laid against him. Mr. McLellan could have been motivated to lie to avoid criminal responsibility for any threats against Mr. Tsega. Despite this possibility, there are some factors which support a finding of threshold reliability.

[107] Mr. McLellan’s statement, although exculpatory in regard to his allegedly threatening Mr. Tsega, was inculpatory in the respect of acknowledging that two months prior to the home invasion, he had been involved in the planning of the home invasion with Dylon Barnett and Sam Tsega. And it was the murder charge which was of greatest concern to Mr. McLellan and which raised the greatest jeopardy.

[108] Most importantly, there is the corroborating evidence listed above. Much of that evidence comes from a source other than Mr. Mullen. Both because Mr. Mullen is an unsavoury witness, and an accomplice of Mr. McLellan, any statement of his that could corroborate that of Mr. McLellan must be considered with suspicion (Vetrovec).

[109] As well, as discussed above, there was an opportunity for collusion or collaboration between Mr. McLellan and Mr. Mullen between the September 9 and the November 16, 2010 interviews. I am not convinced, at this time, that there was actual collusion or collaboration tainting Mr. McLellan’s evidence. That will be something going to the ultimate reliability of both statements. But even putting aside the potential corroboration that can be provided by Mr. Mullen’s statement, there remains significant corroborating evidence from other sources that bolsters the reliability of Mr. McLellan’s statement. That other corroborating evidence gives comfort that Mr. McLellan is being truthful in relevant aspects of his account (Khela, at paras. 11, 32, 39-40, 42-43). This is particularly so when Mr. McLellan’s statement regarding Mr. Tsega’s involvement is logical, internally consistent, and consistent with the direct and circumstantial evidence heard to date.

[110] In B. (K.G.), Lamer C.J., at 801, stated that a trial judge has discretion to refuse to admit a prior statement, even when the criteria for making it admissible exist, when there is a concern that the statement may be the product of some form of investigatory misconduct. There is no question that the officers interviewing Mr. McLellan could have handled themselves in a way to offer more procedural safeguards to the reliability of his statement. Had they been operating cautiously, they would have used fewer leading questions and would have let Mr. McLellan’s story unfold more naturally in his own words. Taken as a whole, however, the officers’ behavior does not, in my view, rise to the level of investigatory misconduct that should result in the statement being ruled inadmissible. Many of the concerns raised by the Defence in this regard will go to the ultimate weight to be assigned to the statement.

[111] The circumstances in which Mr. McLellan’s statement was made, the variety of confirmatory evidence, and the multiple sources of such evidence support a finding that Mr. McLellan’s statement passes the test for threshold reliability, though the call is a close one. Admission of this statement will not impact negatively on trial fairness or the truth-seeking function of the trial due to the circumstantial guarantees of the reliability of the statement.

Kristopher McLellan’s Evidence at his Trial

[112] Kristopher McLellan testified at his own murder trial in October 2013. At that time, he was cross-examined briefly by counsel for Mr. Mullen, who was being tried at the same trial, and he was cross-examined extensively by Crown counsel.

[113] Mr. McLellan testified that he was the shooter, but that the shooting itself had been an accident and unintentional. He outlined how the plan to rob Michael Swan had been hatched in Toronto the previous Christmas by Dylon Barnett, Sam Tsega, and himself. He described the minimal preparation undertaken for the robbery. He provided a chronology of events on February 21-22, 2010. Finally, he described Mr. Tsega’s alleged involvement in the offence.

Ability of the Trier of Fact to Assess the Truth and Accuracy of the Statement

[114] First, what substitutes are there for Mr. McLellan testifying under oath at this trial and being cross-examined contemporaneously with his testifying? Mr. McLellan provided evidence under oath at his own trial and would have been well aware of the jeopardy he would face for false testimony. His evidence was recorded in its entirety and the audiotape of his evidence was played during the voir dire. A transcript of that audiotape was also available to assist the court. Mr. McLellan faced a vigorous cross-examination by Crown counsel after testifying in his own defence. That being said, there are limitations to the extent to which these safeguards can support a finding of threshold reliability of Mr. McLellan’s statement in the context of this trial.

[115] The focus of Mr. McLellan’s examination-in-chief was what happened once he, Kyle Mullen, and Dylon Barnett were in 4139 Moodie Drive and how it came about that Michael Swan was killed. Although there is mention of the role Sam Tsega allegedly played in planning the robbery and in showing the Toronto Three the location of Michael Swan’s house, this is somewhat peripheral to the key issue at the McLellan trial; namely, whether Mr. McLellan intended to shoot and kill Mr. Swan. On cross-examination, Crown counsel, who not only wanted to get a first degree murder conviction against Mr. McLellan, but who also wanted to get as much evidence as possible about Sam Tsega’s involvement in the murder, questioned Mr. McLellan at length about Ms. Tsega’s role. Virtually all of the questions were leading. Mr. McLellan was given little opportunity to express what happened in his own words. Thus, the party now wanting to tender at this trial Mr. McLellan’s statement from his earlier trial as evidence against the accused, Mr. Tsega, is the same party that asked leading questions to Mr. McLellan during the earlier cross-examination so as to elicit this evidence. This cross-examination did not serve the purpose of prodding and challenging Mr. McLellan’s evidence implicating Mr. Tsega. It served no useful purpose to the accused at this trial.

[116] Most importantly, Mr. Tsega was not a party at the McLellan trial. His counsel had no opportunity to cross-examine Mr. McLellan on his assertions regarding Mr. Tsega’s involvement in the robbery and murder, and he will have no opportunity at this trial to do so. This is a very different situation from those where the Crown wants to tender at trial the evidence of a complainant from a preliminary inquiry where the accused’s counsel had the opportunity of cross-examining the complainant at that inquiry, and Crown counsel was limited to examining the witness in chief at that time. It also differs from the situation where, at trial, Defence counsel has the opportunity of cross-examining a witness on evidence previously given by him or her at other proceedings.

[117] The procedural substitutes are inadequate to provide threshold reliability.

Circumstantial Guarantees of Reliability/Inherent Trustworthiness

[118] Second, are there circumstances surrounding the giving of Mr. McLellan’s evidence which provide a circumstantial guarantee of trustworthiness and give it a “stamp of reliability” to the extent that is required for admission into evidence?

[119] As with the September 9, 2010 statement of Mr. Mullen and the November 16, 2010 statement of Mr. McLellan, there is much evidence that corroborates the evidence given by Mr. McLellan at his trial regarding the alleged involvement of Sam Tsega in the events of February 21-22, 2010. It is primarily on the basis of this corroborating evidence that I have ruled those earlier statements admissible. I accept that it may appear inconsistent not to admit Mr. McLellan’s trial evidence on the same basis; however, in my view, to admit that evidence would negatively impact on trial fairness – or at least the perception of Mr. Tsega as to whether he is receiving a fair trial.

[120] What is most troubling about Mr. McLellan’s evidence for the purpose of a threshold reliability analysis is the cross-examination by Crown counsel. As is customary, the cross-examination was replete with leading questions. There is nothing improper about that, but it resulted in Mr. McLellan having very little opportunity to provide his own version of events. Crown counsel set out the version he wanted and simply asked Mr. McLellan to agree. This was the approach used not only in regard to evidence relating to Mr. McLellan’s participation in the offence and his level of culpability, but also in regard to evidence relating to Sam Tsega. Additionally, Crown counsel fell into the habit of asking several questions at the same time before allowing Mr. McLellan to answer, and he interrupted Mr. McLellan repeatedly as he was trying to answer the questions. This is not to say that Mr. McLellan agreed with everything put to him by Crown counsel or that he did not hold fast to a response that was not the one anticipated or wanted by Crown counsel. That happened on a number of occasions. However, the overall tenor of the cross-examination was of Crown counsel firing multiple leading questions at Mr. McLellan and virtually demanding his agreement. It was painful listening to the audiotape.

[121] This format of cross-examination reduces confidence in the accuracy of Mr. McLellan’s evidence and undermines its reliability for the purpose of a threshold reliability analysis in this trial.

Other Considerations

[122] A further factor which has the potential of undermining the appearance of trial fairness is that, in closing submissions at Mr. McLellan’s trial, Crown counsel argued strenuously that Mr. McLellan’s evidence was “unworthy of belief” and that his testimony overall was “unreliable and unbelievable”. Yet, at this trial involving the same series of events, the same Crown counsel is arguing that Mr. McLellan’s evidence has hallmarks of reliability – at least sufficient to be admissible against Mr. Tsega. That about-face, although technically available to the Crown, is unseemly and would, in my opinion, cause some disrepute to the administration of justice. Crown counsel argued that his comments at Mr. McLellan’s trial about Mr. McLellan not telling the truth and being an unreliable witness were not intended to apply to his evidence regarding Sam Tsega’s alleged involvement in the home invasion and the murder of Michael Swan; however, the comments of Crown counsel at the time were not obviously so restricted.

[123] For these reasons, the evidence of Mr. McLellan from his trial will not be admitted at this trial.

Aitken J.

Released: June 3, 2016

CITATION: R. v. Tsega, 2016 ONSC 3399

COURT FILE NO.: 11-RM2878

DATE: 2016/06/03

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Applicant

– and –

SAM TSEGA

Respondent

ADMISSIBILITY RULING #1

OUT-OF-COURT STATEMENTS

Aitken J.

Released: June 3, 2016