CITATION: R v. Ranglin 2016 ONSC 4307

COURT FILE NO.: Crim J(P) 1156/15

DATE: 20160629

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SHELDON RANGLIN

Defendant

B. McGuire and E. Taylor for the Crown

M. Moon and A. Pyper for the Defendant

HEARD: June 14, 2016

RULING ON CROWN KGB APPLICATION

Ricchetti J.:

Contents

THE APPLICATION.. 2

BACKGROUND TO THE KGB APPLICATION.. 3

PART 1 STATEMENTS: PAGE 39 OF 43 OF THE TRANSCRIPT.. 5

PART 2 STATEMENTS: BOTTOM OF PAGE 17 TO TOP OF PAGE 19 OF THE TRANSCRIPT 7

EVIDENCE ON THE VOIR DIRE.. 8

SGT. DETECTIVE RICE.. 8

POSITION OF THE PARTIES. 9

THE CROWN.. 9

THE DEFENCE.. 9

THE ENTIRE WATTS AUDIO OR PORTIONS?. 10

THE LAW... 10

ANALYSIS. 12

INTERCEPTED PRIVATE COMMUNICATIONS. 12

No Consent Authorization. 12

No Notice under s. 189(5) of the Criminal Code. 13

THE KGB ANALYSIS. 14

Necessity. 14

Relevance of the Prior Inconsistent Statements to the Issues. 14

Cross Examination is Available. 16

Perception. 21

Memory. 21

Narration. 22

CONCLUSION.. 27

Part 1 Statements. 27

Part 2 Statements. 27

THE APPLICATION

[1] On June 13, 2016, during the evidence in chief of Mr. Moy-Lingomba, the Crown brought an application seeking a ruling that certain prior inconsistent statements made by Mr. Moy-Lingomba to Darren Watts be admitted as proof of the truth of their contents.

[2] The Defence opposed the Crown's application.

[3] Submissions were heard on June 14, 2016.

[4] On June 16, 2016, the parties were advised of my ruling and that written reasons would follow. These are those reasons.

BACKGROUND TO THE KGB APPLICATION

[5] On June 21, 2012, Mr. Darren Watts wore a recording device while in the courthouse holding cell. Mr. Moy-Lingomba was placed into the same cell. There is an audio of that encounter (“Watts Audio”).

[6] During the preliminary hearing in this case, Mr. Moy-Lingomba refused to be sworn or affirmed and did not give evidence. As a result, he was charged with obstructing justice.

[7] On June 10, 2016, the Crown called Mr. Moy-Lingomba as a witness. Mr. Moy-Lingomba swore an oath. The Crown proceeded to examine Mr. Moy-Lingomba in chief.

[8] After retired, the Crown brought an application under s. 9(2) of the Canada Evidence Act to cross examine Mr. Moy-Lingomba on certain alleged prior inconsistent statements made to Mr. Watts.

[9] At the conclusion of the argument on this application, leave was granted permitting the Crown to cross-examine Mr. Lingomba on certain specified portions of the statements made to Mr. Watts contained in the Watts Audio. Separate written reasons have been released for the ruling on the Crown's s .9 (2) application identifying those portions where leave was granted to the Crown to cross-examine Mr. Moy-Lingomba.

[10] Mr. Moy-Lingomba was recalled to continue his testimony before the jury on June 10, 2016.

[11] One of the areas where leave was granted to the Crown to cross examine Mr. Moy-Lingomba was his denial that he knew who Juice was or that Mr. Ranglin was Juice. When Mr. Moy-Lingomba re-attended to continue his testimony and be cross-examined on the specified prior inconsistent statements, Mr. Moy-Lingomba admitted that he had lied to the court on the prior day and that he did know Juice and that Juice was Mr. Ranglin.

[12] Mr. Moy-Lingomba was cross-examined on the portions of his statements to Mr. Watts recorded in the Watts Audio. He testified as follows:

• Mr. Moy-Lingomba recognized the record of him speaking with Mr. Watts in the courthouse cells on June 21, 2012;

• Mr. Moy-Lingomba generally had no problems hearing the conversation, but he heard some noise in the background, but he said that he understood what he had said in the Part 1 Statement (as identified below). As will be seen below, the same was not the case for Part 2 Statement (as identified below);

• Mr. Moy-Lingomba expressed his reluctance to give evidence - he didn't want to be there;

• Mr. Moy-Lingomba said he was high on molly and crystal meth when in the cell with Mr. Watts;

• Mr. Moy-Lingomba continued to deny he had ever spoken to Juice about the shooting at Rexwood apartment or why the shooting at Rexwood apartment had occurred;

[13] For ease of reference I will refer to certain parts of the transcript of the Watts Audio, although it should be noted that the transcript of the Watts Audio was not put before the jury due to concerns regarding the reliability of the transcript and the potential for it to influence what the witness or a reader might conclude from the Watts Audio.

PART 1 STATEMENTS: PAGE 39 OF 43 OF THE TRANSCRIPT

[14] After this portion of the Watts Audio was played several times during Mr. Moy-Lingomba's cross examination, Mr. Moy-Lingomba identified and agreed the following conversation took place with Mr. Watts:

Watts: Juice. Fucking stupid

Moy-Lingomba: Juice stupid? How?

Watts: Cause he should have just dealt with that by himself.

Moy-Lingomba: You know how long Juice has been looking for that guy. Juice has been looking for that guy since '06-'07. That's the first time Juice seen him, I don't know how long. Juice is like, yo homie, if I see this guy anywhere he's getting it. He's like yo, bro, if I see him in front of the boydem [which he explained was the police], he's getting it. If anywhere I see this guy, on demand.

Watts: On sight thing then?

Moy-Lingomba: On sight.

Watts: It wasn't even pre-meditated or nothing

Moy-Lingomba: No.

Watts: Like accident basically.

Moy-Lingomba: just ran into the nigga you know.

Watts: Oh coincidence.

Moy-Lingomba: It was just a coincidence that he [Mr. Moy-Lingomba believed he was referring to the victim] was there and it was a coincidence that me and Tones at Rexwood that day.

[15] While admitting to the above conversation, Mr. Moy-Lingomba testified:

• He had not seen Juice at Rexwood that day;

• Mr. Moy-Lingomba denied that the source of the statements he made was Juice but he agreed it appeared he was telling Mr. Watts what Juice had told him. He agreed that he didn't tell Mr. Watts that he had heard the information from others but said he didn't know why he said it came directly from Juice's mouth;

• Mr. Moy-Lingomba denied that he and Juice were tight friends;

• Mr. Moy-Lingomba had “somewhat” of a memory of the conversation;

• Mr. Moy-Lingomba explained - he was not telling Mr. Watts the truth - he was high - he had heard the information from other sources like gossip and rumour but couldn't recall where he had heard this - he was bragging to Mr. Watts to sound cool;

• Mr. Moy-Lingomba didn't know that his conversation with Mr. Watts was being recorded. Mr. Moy-Lingomba thought Mr. Watts was just another person in jail, from the neighbourhood, who knew the rules - don't snitch, don't talk, keep your mouth shut; just two guys who were at the shooting and both knew Juice - talking;

• Mr. Moy-Lingomba didn't know at the time Mr. Watts was an agent of the police but concluded, at least now, Mr. Watts was a “nobody” for what he did;

• Mr. Moy-Lingomba explained the importance of not snitching - he has no use for people who do.

PART 2 STATEMENTS: BOTTOM OF PAGE 17 TO TOP OF PAGE 19 OF THE TRANSCRIPT

[16] The Crown then proceeded to cross examine Mr. Moy-Lingomba on this portion of the statements made to Mr. Watts from the Watts Audio.

[17] Mr. Moy-Lingomba testified he was describing to Mr. Watts the shooting that took place at Rexwood apartment during this portion of the conversation with Mr. Watts. Mr. Moy-Lingomba explained he was describing when and what he found out about the shooting.

[18] Unlike the Part 1 Statements, the difficulty with this portion of the Watts Audio is that many sections of the audio are inaudible and were not confirmed by Mr. Moy-Lingomba as to what was said by him to Mr. Watts. What few portions were identified by Mr. Moy-Lingomba were disjointed and lacked coherence and context.

[19] Without this evidence from Mr. Moy-Lingomba and without a clear and accurate record of what Mr. Moy-Lingomba said during this part of the conversation with Mr. Watts, his statements to Mr. Watts of this portion of the conversation cannot be set out herein.

[20] I do note that, during the cross examination, Mr. Moy-Lingomba nevertheless admitted as true and part of his recollection that Tone (referring the Mr. Borden) gave him the keys to the Mazda. What is significant of this small portion, is that Mr. Moy-Lingomba, provided a detailed explanation rationalizing or attempting to rationalize his in court testimony with what he had said in the statement to Mr. Watts.

EVIDENCE ON THE VOIR DIRE

[21] The parties agreed that the Watts Audio, transcript of the Watts Audio, videotaped interview with the police on June 21, 2012 and the transcript were evidence in the voir dire.

SGT. DETECTIVE RICE

[22] The Crown called Sergeant Detective Rice to give viva voce evidence. Sgt. Rice participated in the interview of Mr. Moy-Lingomba earlier in the same day Mr. Moy-Lingomba was placed in the cells with Mr. Watts and the Watts Audio recording was made.

[23] At the time, Mr. Moy-Lingomba had been arrested on numerous gun charges. The police sought to interview Mr. Moy-Lingomba "off the record" with the strong suggestion that he contact his lawyer to do a deal on the Brissett murder or Mr. Moy-Lingomba would be charged with the murder. Mr. Moy-Lingomba was also told that, unless he did a deal, there could potentially be charges involving Mr. Moy-Lingomba's girlfriend and father. Sgt. Rice candidly admitted that he was offering an inducement (do a deal) and some threats (his father and girlfriend may be brought into the matter for having given false alibi's regarding Mr. Moy-Lingomba's whereabouts at the time of the shooting).

[24] Sgt. Rice did not believe Mr. Moy-Lingomba "got too rattled" by what the police had said to him. That appears to be consistent with Mr. Moy-Lingomba's behaviour throughout the videotaped interview.

[25] Despite considerable pressure from the police, Mr. Moy-Lingomba refused to speak about or discuss the shooting with the police.

[26] What is clear from the videotaped interview is that Mr. Moy-Lingomba did not appear to be suffering from any impairment, whether alcohol or drugs. He was upset at being interviewed and became profane only after he was told the interview was off the record. Mr. Moy-Lingomba clearly understood what was going on, was combative with the police and remained steadfast in his decision not to say anything to the police.

[27] Sgt. Rice testified that there was no visible impairment that he observed that day. He concluded that Mr. Moy-Lingomba was alert and aware what was going on and was making a conscious decision not to speak with the police.

[28] Sgt. Rice testified the police raised the subject of the Brissett shooting with a hope that, when Mr. Moy-Lingomba went down to the cells, where Mr. Watts was waiting, the subject of the shooting would be fresh in Mr. Moy-Lingomba's mind and he would talk about it with Mr. Watts.

[29] Sgt. Rice admitted that it common to have an arrested person attempt to blame someone else for the offence. On June 21, 2012, the police had a number of suspects involved in the shooting including Mr. Ranglin, Mr. Borden and Mr. Moy-Lingomba.

POSITION OF THE PARTIES

[30] The Defence concedes that necessity has been made out as Mr. Moy-Lingomba has recanted.

[31] As a result, the central issue on the KGB application is threshold reliability.

THE CROWN

[32] The Crown submits that both or either Parts of the Statements are relevant and material to the issues at trial and meet the threshold reliability standard for their admission as truth of their contents.

THE DEFENCE

[33] The Defence raised the following issues:

a) the Watts Audio constitutes intercepted private communications;

b) The audio is incomplete and of poor quality;

c) There is no video;

d) There is no oath;

e) Mr. Moy-Lingomba's statements arose from the police agent's statements; and

f) Mr. Moy-Lingomba's statements were subject to overt threats and inducements.

THE ENTIRE WATTS AUDIO OR PORTIONS?

[34] The Defence did not suggest that the entire conversation with Mr. Watts, as recorded in the Watts Audio, or none of it be subject to the KGB ruling. The Defence agreed that this court could admit parts (i.e. Part 1 and Part 2 as described herein), none or all of the conversation recorded in the Watts Audio for the truth of its contents.

[35] The following excerpt of the exchange with Defence counsel regarding the admissibility of a portion of the Watts:

The Court: I can decide No. 2 [referred to as Part 1 in these reasons], whether that goes in, I can decide whether No. 1 [referred to as Part 2 in these reasons] goes in, or they both go in or neither go in.

Mr. Moon: Yes sir.

[36] Having listened to the Watts Audio several times, this court is satisfied that other portions of the Watts Audio or statements made by Mr. Moy-Lingomba to Mr. Watts are not needed to contextualize or explain Part 1 Statements.

[37] This section of the conversation appears to be a “stand alone” segment dealing with Mr. Ranglin’s possible motive for the shooting. This section of the conversations’ admissibility can be dealt with separately from the rest of the statements in the Watts Audio.

THE LAW

[38] Mr. Moy-Lingomba's prior inconsistent statements are hearsay. The admissibility issue in this case is whether the out-of-court statements by Mr. Moy-Lingomba satisfy the threshold reliability requirement of the principled exception to the hearsay rule. Necessity is not an issue having been conceded by the Defence.

[39] In this analysis, this court is determining threshold reliability - that is the evidentiary question of the admissibility of the proposed statements. The ultimate reliability of the hearsay statements is for the jury to decide.

[40] A framework and principles for the court's analysis was summarized by Watt J.A. in R. v. Chretien, 2014 ONCA 403, 309 C.C.C. (3d) 418:

[48] First, hearsay evidence is presumptively inadmissible because the dangers associated with it may undermine the truth-seeking function of a criminal trial or the fairness of that trial: Youvarajah, at para.18;Khelawon, at para. 2. The hearsay dangers include an inability to test and assess a declarant’s perception, memory, narration and sincerity: Youvarajah, at para. 18; Khelawon, at para.2.

[49] Second, when invited to admit hearsay under the principled approach, a judge should adopt a functional approach that focuses on the particular hearsay evidence tendered for admission, as well as on those attributes or circumstances relied upon by the proponent of the hearsay to overcome those dangers: Youvarajah, at para. 21; Khelawon, at para. 93.

[50] Third, in the principled approach to the admissibility of hearsay, the reliability requirement refers to threshold, not ultimate reliability. Were it otherwise, we would fail to maintain the distinction between admissibility and weight or reliance, breaching the divide between the role assigned to the trier of law, on the one hand, and the trier of fact, on the other: Khelawon, at paras. 2 and 50. Threshold reliability involves a determination of whether the evidence is worth receiving for assessment by the trier of fact: Youvarajah, at para. 24.

[51] Fourth, a prior inconsistent statement of a non-accused witness may be admitted as proof of the truth of its contents if the proponent establishes the reliability indicia described in B (K.G.):

i. the statement is made under oath or solemn affirmation after a warning about the consequences of an untruthful account;

ii. the statement is videotaped in its entirety; and

iii. the opposite party has a full opportunity to cross-examine the witness on the statement.

See, B (K.G.), at pp. 795-796; and Youvarajah, at para. 29.

[52] But the B (K.G.) indicia are not the only means of establishing threshold reliability in connection with prior inconsistent statements. Threshold reliability may also be established by:

i. the presence of adequate substitutes for testing truth and accuracy (procedural reliability); and

ii. sufficient circumstantial guarantees of reliability or an inherent trustworthiness (substantive reliability).

These principal methods of establishing threshold reliability are not mutually exclusive: Youvarajah, at para. 30;Khelawon, at paras. 49 and 61-63; and Devine, at para. 22.

[53] The most important factors supporting the admissibility of a prior inconsistent statement of a non-accused witness for the truth of its contents is the availability of the non-accused witness for cross-examination. This factor alone goes a long way towards satisfaction of the requirement for adequate substitutes for testing the evidence: Youvarajah, at para. 35; Couture, at paras. 92 and 95. Any limitations on the opportunity to cross-examine the non-accused witness at trial, for example because of the assertion by the witness of a privilege, a claim of lack of memory or a refusal to answer questions may render the opportunity more illusory than real: Youvarajah, at para. 36; Devine, at para. 37; R. v. James, 2011 ONCA 839, 283 C.C.C. (3d) 212, at paras. 41-44; and R. v. U (F.J.), 1995 CanLII 74 (SCC), [1995] 3 S.C.R. 764, at para. 46.

[54] Where a proponent attempts to establish reliability based on the circumstances surrounding the making of a statement (substantive reliability), the trial judge may also consider the presence of corroborating (or conflicting) evidence: Khelawon, at para. 93; and Taylor, at para. 30.

[55] The principled approach to the admissibility of hearsay requires a flexible case-by-case examination to determine whether the requirements of necessity and reliability are met. This approach eschews categories of exceptions within the necessity/reliability analysis: Khelawon, at para. 45. Although the nature of the evidence can have a bearing on the reliability analysis, there is no warrant for a discrete subdivision of reliability based on the centrality of the hearsay to the proof of the Crown’s case.

[41] The assessment of threshold reliability is an inquiry involving a functional approach to consider whether the circumstances in which the statement was made have sufficiently allayed concerns about perception, memory, sincerity and narration, the traditional inherent hearsay dangers. In the end, this court must decide whether "On the basis of the evidence presented, is the trier of fact able to sufficiently test the truth and accuracy of the statement in issue?" See R. v. Hamilton, 2011 ONCA 399, 271 C.C.C. (3d) 208, at para. 155.

[42] Each case is highly dependent on the facts and circumstances of that case.

ANALYSIS

INTERCEPTED PRIVATE COMMUNICATIONS

No Consent Authorization

[43] The Defence submits that there is no evidence of lawful authority for the intercepted private communication as there is no evidence on this voir dire of the Consent Authorization.

[44] There is no merit to this submission.

[45] On April 8, 2016, the Crown brought an application relating to the admissibility of Mr. Moy-Lingomba's statements to Mr. Watts in the cells. The application specifically referred to an authorization issued under s. 184.2 of the Criminal Code.

[46] On May 9, 2016, the Crown's application was considered by this court. There was no issue regarding the Consent Authorization.

[47] On June 10, 2016, the Defence sought an adjournment of the Crown's s. 9(2) application to bring an application to quash the Consent Authorization. The adjournment was denied with reasons set out in the s. 9(2) ruling.

[48] Now the Defence submits that there is no evidence of the Consent Authorization. Given the positions taken by the Defence previously in this trial, I would not give effect to this submission.

[49] In any event, there is a more fundamental problem with the Defence position. It is too late to seek to exclude the intercepted statements as recorded in the Watts Audio. The time for the Defence to have raised this issue was when the Crown sought to cross examine Mr. Moy-Lingomba on the prior inconsistent statements as recorded in the Watts Audio. Having failed to do that and leave being granted under s. 9(2) of the Canada Evidence Act, the jury has now heard the conversation between Mr. Moy-Lingomba and Mr. Watts. The jury has heard the portions of the Watts Audio played for the purpose of cross-examination.

[50] It is simply too late for the Defence to take the position there was no Consent Authorization for the Watts Audio.

No Notice under s. 189(5) of the Criminal Code

[51] The Defence submits that no notice was given under s. 189(5) of the Criminal Code.

[52] No form of notice is specified in the Criminal Code. No particular notice period is specified.

[53] The Defence had notice of the intercepted communications at the very least from the time the Crown brought its application and included the Watts Audio and synopsis transcript.

[54] When Defence counsel was asked whether the Crown disclosure (provided at least prior to the preliminary hearing which took place approximately one year ago) of the Watts Audio synopsis had included the Consent Authorization, Defence counsel refused to answer the court's question.

[55] I am satisfied that reasonable notice was given to the Defence under s. 189(5) of the Criminal Code.

THE KGB ANALYSIS

Necessity

[56] Where a witness recants, that satisfies the necessity requirement. See R. v. Taylor, 2015 ONCA 448, 325 C.C.C. (3d) 413, at para. 69.

[57] Necessity is conceded by the Defence.

Relevance of the Prior Inconsistent Statements to the Issues

Part 1 Statements

[58] Mr. Moy-Lingomba does not expressly state that he saw who the shooter was.

[59] The Part 1 Statements are relevant to the Crown's theory of a motive for the murder.

[60] The Part 1 Statements are statements made by Mr. Moy-Lingomba in which he recounts things apparently attributed to Mr. Ranglin as being said to him. Mr. Moy-Lingomba at times denied these were statements were made directly to him by Mr. Ranglin but, at other times, testified he didn't know why he had told Mr. Watts that Mr. Ranglin had made the statements to him.

[61] If Mr. Moy-Lingomba testified, as he stated in the Watts Audio that Mr. Ranglin told him various things, such statements would be admissible as an exception to the hearsay rule as statements made by Mr. Ranglin against his interests. Mr. Ranglin would have been entitled to and could have challenged that evidence through cross-examination of Mr. Moy-Lingomba. The jury would decide whether to accept that those statements had been made by Mr. Ranglin and what use, if any, would be made of any statements they concluded were made by Mr. Ranglin. There would have been no issue of relevance or reliability if this was the proffered evidence by Mr. Moy-Lingomba.

[62] Essentially, with respect to the Part 1 Statements, we have Mr. Moy-Lingomba, a recanting witness, admitting he previously made these statements allegedly attributed to Mr. Ranglin. In other words, we have the recipient of the hearsay statements in court who allegedly heard Mr. Ranglin, the declarant, make the statements and he is here to be cross-examined and the jury could decide whether Mr. Ranglin made the statements to Mr. Moy-Lingomba.

[63] The other significance of this evidence form the Part 1 Statements is that Mr. Moy-Lingomba states he and Mr. Borden were just coincidentally at Rexwood apartment that evening. Given that the Defence has already suggested that Mr. Borden or one of his crew (which included Mr. Moy-Lingomba) was the shooter and the submissions by Defence counsel that Mr. Moy-Lingomba is the shooter, increases the relevance and importance for this evidence to go into evidence on the question of who is the shooter, the primary issue to be decided.

Part 2 Statements

[64] What little of the Part 1 Statements was admitted by Mr. Moy-Lingomba relate to his actions on the night of the shooting.

[65] Mr. Borden testified that he and Mr. Moy-Lingomba drove his white Mazda to the Rexwood apartment that evening. Then, he testified Mr. Ranglin asked him for his gun back, Mr. Borden gave him the gun, and Mr. Ranglin gave him the keys to his car to drive. Mr. Borden testified he gave his Mazda keys to Mr. Moy-Lingomba to take his car since he would be driving Mr. Ranglin's car.

[66] Mr. Moy-Lingomba testified in chief that he drove the Mazda to the Rexwood apartment that evening alone. When the shooting started, he ran for the Mazda and drove off.

[67] Mr. Moy-Lingomba's prior inconsistent statements are relevant as other evidence pointed to Mr. Borden being the driver of the car into which the shooter got into and drove off.

[68] This evidence, if believed by the jury, is to some extent confirmatory of Mr. Borden's evidence.

Cross Examination is Available

[69] Let me start with procedural reliability and Mr. Moy-Lingomba's availability for cross examination.

[70] As stated above in Chretien, the availability for cross examination of the witness goes a long way towards an adequate substitute for reliability. However, there must be full opportunity to cross examine the witness at trial. In R. v. U. (F.J.), 1995 CanLII 74 (SCC), [1995] 3 S.C.R. 764 at para 46, the Supreme Court made the following statement regarding the need for a full opportunity to cross examine the witness at trial before the jury:

.....The first factor contributing to reliability is the cross-examination of the witness. If the witness provides an explanation for changing his or her story, the trier of fact will be able to assess both versions of the story, as well as the explanation. However, where a witness does not recall making an earlier statement, or refuses to answer questions, the trial judge should take into account that this may impede the jury's ability to assess the ultimate reliability of the statement.

[71] The importance of cross examination was re-affirmed by the Supreme Court in R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720. The Supreme Court stated that the most powerful factor favouring admissibility of a prior inconsistent statement is the opportunity to cross-examine at trial.

[72] When the prior inconsistent statement is recorded on video, availability for cross examination and an accurate record go virtually all of the way to provide the jury with the tools to assess ultimate reliability. In R. v. Trieu (2005), 2005 CanLII 7884 (ON CA), 74 O.R. (3d) 481 (C.A.), the Court of Appeal put it this way, at para. 76:

Accepting that cross-examination “goes a substantial part of the way” towards ensuring that the triers of fact can adequately assess reliability [see R. v. U. (F.J.), 1995 CanLII 74 (SCC), [1995] 3 S.C.R. 764, at para. 39], I believe that when the triers also have a videotape of the declarant making the statement, the two in combination go virtually “all of the way” to providing the triers with the tools they need to adequately assess reliability.

[73] The presence of these two elements reduces the absence of an oath to only a “modest” factor in the reliability analysis. See Trieu, at para. 78.

[74] It is true that there is no video in the present case. There is only a poor quality audio. However, the jury has Mr. Moy-Lingomba's testimony as to what he said when it comes to his Part 1 Statements. In my view, this is an equal or better substitute for a video as to the accuracy of what was said. The maker has admitted that is what he said before the jury.

[75] Given the lack of connection with other parts of the statements in the Watts Audio, Mr. Moy-Lingomba is available to be cross examined on the reliability of those statements in this portion.

[76] In Taylor, Watt J.A. stated, at para. 74:

The opportunity to cross-examine the declarant/witness before the trier of fact must be a meaningful one, however, not limited, for example, because the witness urges privilege, refuses to answer the cross-examiner’s questions or claims lack of memory. Chretien, at para. 53.

[77] The court cannot and does not simply accept the evidence of the recanting witness that he cannot remember what he said and therefore dismiss a Crown's KGB application. The court must consider all the evidence to determine whether the witness truly cannot remember and, if so and to what extent this impairs the Defence's cross examination and the ability of the jury to properly and fully assess the reliability of the prior inconsistent statements.

"High" and Lack of Memory

[78] The Defence submits that a full cross examination of Mr. Moy-Lingomba is not available because he was allegedly high and cannot remember what was said that day. The Defence suggests he was agitated and non-sensical.

[79] I disagree with the Defence.

[80] First, this evidence from Mr. Moy-Lingomba must be considered in light of the fact he does not want to be a snitch, he beats up snitches and he thinks someone who snitches is a nobody. As a result, Mr. Moy-Lingomba's statements must be approached cautiously and their veracity considered with the rest of the evidence.

[81] When that is done, his assertions of being "high" and not remembering are rejected by this court. There is considerable evidence that Mr. Moy-Lingomba had an operating mind and could remember the events when he chose to avoid or explain away his statements:

a) Mr. Moy-Lingomba was in custody at the time. This makes access to drugs more difficult, but not impossible;

b) During the 1 1/2 hour police interview immediately before being put into the cell with Mr. Watts, there were no signs of Mr. Moy-Lingomba's impairment by drugs or anything else. He was coherent and responsive. He was clear, adamant and immovable in his position not to talk about the shooting with the police. He was not intimidated by the police. He was generally polite and proper with the interviewers until he found out the interview, while recorded, was off the record at which time he was alert enough to hurl multiple expletives at the officers and became belligerent. He clearly knew what he has saying and doing;

c) During his evidence in chief, Mr. Moy-Lingomba said he didn't remember what he had said to Mr. Watts. Yet, Mr. Moy-Lingomba displayed a clear understanding of what he had said, what he meant, whether the information was personal knowledge or from rumor or gossip and that it was made up to impress Mr. Watts. Mr. Moy-Lingomba was even sufficiently aware of the statements that he was capable of elaborating or attempting to explain away some of the statements. For example, when asked how he could have had the Mazda keys tossed to him if he had driven alone to Rexwood apartment, he explained that he had, after arriving, given the keys to Mr. Borden because he had to go upstairs for a drug deal and when he returned, that was when Mr. Borden gave him the keys back. Clearly, this was a detailed and complex explanation based on his memory of the evening to attempt to explain away what he had said to Mr. Watts. This is indicative of a detailed recollection of the events of the night and the capacity for the veracity of his statements to be tested by cross examination. In other words, his pre-emptive and continuing efforts to distance himself from the statements he made to Mr. Watts and his proffered explanations for his statements suggest a clear recollection and awareness by Mr. Moy-Lingomba of the events of June 21, 2012 in the cells with Mr. Watts.

[82] This is not a case like Youvarajah, where a complete cross examination could not be conducted by the Defence (at para. 50).

[83] This is not the situation where the Mr. Moy-Lingomba denies making the statement or there is doubt as to what Mr. Moy-Lingomba said. The central issue is whether the jury will, with the benefit of a cross examination, assess his prior inconsistent statements and his explanations for his inconsistent testimony at trial. This court is satisfied that it can. In this case, the cross examination in this case would not be illusory.

[84] I conclude that a full opportunity for cross examination of Mr. Moy-Lingomba is available to the Defence.

Sincerity

[85] Clearly, there was no oath prior to the encounter and conversation between Mr. Moy-Lingomba and Mr. Watts.

[86] However, as the Crown points out, Mr. Moy-Lingomba has already admitted that he lied under oath during his testimony at this trial on whether he knew Juice and that Juice was Mr. Ranglin because of this disdain for the Crown. In these circumstances, the absence of an oath during his conversation with Mr. Watts takes on less importance. See Trieu, at para 80.

Motive to Fabricate - blame someone else

[87] The Defence submits that Mr. Moy-Lingomba had a motive to blame someone else because he had just come from a police interview where the police threatened to charge him with murder and to implicate his father and girlfriend in various charges.

[88] No doubt this might have been a more significant factor if the statements had been made to the police.

[89] However, Mr. Moy-Lingomba:

a) believed he was talking with one of the guys from the neighbourhood - "more of an associate";

b) believed he was talking with someone who knew the rules about not speaking with the police or snitching; and

c) had no idea that he was being recorded.

[90] Even if Mr. Moy-Lingomba wanted to get out from under the threatened murder charge, telling lies to someone he knows in the cells and believes will keep his mouth shut does not advance that agenda.

[91] I do not find there is any evidence Mr. Moy-Lingomba would have had a motive to fabricate what he said to Mr. Watts on June 21, 2012 as a basis to deny this application.

Making up statements - to be "cool"

[92] As for the suggestion that Mr. Moy-Lingomba was making the statements to be "cool" or brag to Mr. Watts, there is nothing on the Audio Tapes that Mr. Moy-Lingomba would have had no reason to be "cool" to someone he was associated with by attributing the statements to Mr. Ranglin.

[93] In any event, as set out at paragraph 30 of R. v. F.O, 2016 ONSC 1898:

[30] In respect of the defence contention that Gritty’s tendency to brag or boast supports his position that he invented the story, I would note the salient fact that people often boast or brag about things that are true. In other words, just because someone is boasting or bragging does not, of necessity, mean that the core of what they are saying is untrue.

[94] In any event, given the details to which Mr. Moy-Lingomba has testified (such as what Mr. Watts was doing in jail, how he was being treated by other inmates), his explanations that he was bragging are areas which can be explored on cross-examination.

Corroborating Evidence

[95] The Defence submits there is no corroborating evidence to confirm the truthfulness of Mr. Moy-Lingomba's statements. I agree that there is no direct evidence confirming Mr. Moy-Lingomba's Part 1 Statements.

[96] However, there is evidence that Mr. Ranglin's cousin, Demar Ranglin (aka Demus) was murdered by Mr. Brissett, who was acquitted of the murder. Mr. Ranglin now has a tattoo on his forearm that says "RIP DEMUS", which is evidence consistent with the motive Mr. Moy-Lingomba was allegedly told by Mr. Ranglin. This is potential confirmatory evidence of motive.

[97] Other evidence puts Mr. Ranglin at the scene.

[98] Mr. Borden’s evidence was that he didn’t know there was to be a shooting at Rexwood is corroborative of Mr. Moy-Lingomba’s statement that it was a coincidence that he and Mr. Borden were there.

[99] In my view, there is some confirmatory evidence of Mr. Moy-Lingomba’s statements to Mr. Watts in this portion of the conversation.

Sincerity

[100] In my view, sincerity is not a concern, because there is no possibility that, in the circumstances of the making of the statement, was intended to mislead Mr. Watts. There is significant indication of sincerity arising from two persons who know each other just "talking" without the knowledge that the other person is recording the device but knowing that the other person knows the "rules" - not to talk to the police or snitch.

Perception

[101] The events of the shooting would have been significant to Mr. Moy-Lingomba. He was present at the time of the murder.

[102] Two persons he associated with closely (perhaps even close friends if you accept Mr. Borden's evidence), Mr. Borden and Mr. Ranglin, were there at the time of the shooting. He bolted from the area quickly after the shooting.

[103] From his recollection of the events that night, he has demonstrated that his perception of what occurred was good.

Memory

[104] Unlike many cases, Mr. Moy-Lingomba's statements were made approximately one year after the shooting.

[105] There can be no doubt that the nature of the events described by Mr. Moy-Lingomba was memorable. Mr. Moy-Lingomba could remember giving a handshake to Mr. Borden, why he gave the keys to Mr. Borden, where he parked, doing a drug deal, who was present - all from memory and without any aid to refresh his memory.

[106] Mr. Moy-Lingomba had previously been questioned a number of times before June 21, 2012. There is nothing in the evidence to suggest that his memory of the events of that night or statements made by Mr. Ranglin is suspect.

[107] There is no doubt that Mr. Moy-Lingomba has memory of the events on the evening of the shooting and alleged statements made by Mr. Ranglin to him. The fact that he is able to explain, amplify, offer clear explanations why the statements are not true or based on gossip, is evidence he has a sufficient memory that can be tested through cross-examination.

Narration

[108] It is necessary to deal with this factor separately as it relates to the two parts of the conversation.

Part 1 Statements

[109] The accuracy of this portion of the encounter and conversation between Mr. Moy-Lingomba and Mr. Watts is clearly established by Mr. Moy-Lingomba's own evidence as to what he said to Mr. Watts.

[110] Defence concedes that the expressed concerns regarding a complete and accurate record of the statements are substantially less prevalent for this part.

[111] Mr. Moy-Lingomba is available to be cross-examined by the Defence on the accuracy of what he said.

[112] The Defence submits that there remain issues with the narration of Part 1 Statements:

a) Mr. Moy-Lingomba's statements in this part were made in response to leading or suggestive questions and statements by Mr. Watts.

b) Mr. Moy-Lingomba was impaired by drugs; and

c) Mr. Moy-Lingomba was affected by the threats and inducements from the police during their interview.

The Role of the Agent of the State

[113] The issue of the role of the agent of the state was dealt in R. v. Liew, 1999 CanLII 658 (SCC), [1999] 3 SCR 227. In essence the court must consider all the circumstances of the interaction to determine whether there was a causal link between the conduct of the state agent and the making of the statement by the accused. See Liew, paras 45-46. It is important to remember that Liew was a case involving a statement made by the accused, rather than a witness. The right to silence was of particular significance in that case and is not applicable to this case where the court is dealing with a witness.

[114] I have reviewed carefully the role, questions and statements made by Mr. Watts as it relates to this portion of the Part 1 Statement and the surrounding passages. In my view, Mr. Watts was simply conducting his part of the conversation as someone in the role Mr. Moy-Lingomba believed him to be. See Liew, para 51.

[115] At the very core of what Mr. Moy-Lingomba states in the Part 1 Statements was the motive for the murder. At no point did Mr. Watts suggest or even hint at the facts that were voluntarily offered by Mr. Moy-Lingomba regarding the statements of motive he attributes to Mr. Ranglin.

[116] Similarly, it is Mr. Moy-Lingomba who states that it was a coincidence that Mr. Borden and Mr. Moy-Lingomba were present that night at the shooting.

[117] This court finds no "contamination" or "suggestiveness" by any statements or questions by Mr. Watts raising any narration issue as to what Mr. Moy-Lingomba said during this portion of the conversation.

Impairment/Bragging

[118] For the reasons set out above, I reject that Mr. Moy-Lingomba was impaired by drugs so that the narration is at risk of accurately setting out his voluntarily made statements. The same is true for the suggestion that Mr. Moy-Lingomba was bragging making the Part 1 Statements less reliable.

Police threats and inducements

[119] In Hamilton, the Court of Appeal dealt with the issue of prior inducements to a witness to make a statement which statement was subsequently the subject of a KGB application. The court stated:

[141]....In particular, we do not read K.G.B. as laying down a hard and fast rule that all witness statements taken in contravention of the traditional confessions rule must necessarily be rejected as evidence of the truth of their contents.

[144] In this passage, the Chief Justice is cautioning trial judges not to become mesmerized by the indicia of reliability. When the indicia of reliability are found to exist, normally this will justify the admission of a statement for its truth. But there may be cases where the trial judge is concerned that the indicia of reliability are a façade – and in such circumstances, the voluntariness branch of the confessions rule provides a ready-made guide to assist trial judges in making their threshold reliability determination. For example, if a trial judge were to entertain a real concern that a witness’ statement was the product of police coercion and the witness simply told the police “what the police wanted to hear”, this would necessarily undermine the veracity of the indicia of reliability and render the proposed statement inadmissible for its truth. In that sense, the residual discretion vested in trial judges may be seen as a safety valve. It ensures that the decision to admit a statement for its truth does not devolve into a merely mechanical exercise.

[147] In this case, the trial judge considered the promises and inducements held out to Coward. He was clearly satisfied that they did not impact on the voluntariness of Coward’s statements, nor were his statements a product of police coercion. On the contrary, he found that Coward spoke willingly to the police and his statements were voluntary and the product of his free will.

[148] Those findings were available to the trial judge and we see no basis for interfering with them. In short, having considered the promises and inducements made to Coward, the trial judge was satisfied that they did not undermine the veracity of the indicia of reliability. Hence, he concluded that Coward’s two K.G.B. statements were admissible for their truth. In our view, that conclusion is unassailable.

[149] If, however, we are wrong in our assessment of K.G.B. and the appellants are correct that it stands for the proposition that where the police make promises to a witness to induce the witness to speak, the ensuing statement can never be admitted for its truth, we are respectfully of the view that K.G.B. has, to that extent, been overtaken by Khelawon.

[154] Once it is accepted that the threshold reliability assessment is not restricted to the circumstances surrounding the making of the statement, using the confessions rule as the sole arbiter upon which to base the assessment is counter-intuitive, if not plainly illogical. That is the position the appellants seek to persuade us of and it is one we reject.

[155] Khelawon, in our view, requires trial judges to ask two questions in deciding whether a witness statement should be admitted for its truth:

1. On the basis of the evidence presented, is the trier of fact able to sufficiently test the truth and accuracy of the statement in issue?

2. If the answer to question one is “yes”, are there overriding policy considerations that would prevent the statement from being admitted for its truth?

[156] With respect to the first question, as Khelawon explains, in some instances, the answer will be apparent having regard to the circumstances under which the statement came about. In others, circumstances external to the making of a statement will be such that the trier of fact can sufficiently test the statement’s truth and accuracy. In still others, a combination of the two will satisfy the threshold reliability requirement.

[157] With respect to the second question – policy concerns – if the police were to engage in misconduct such as beating a witness to obtain a statement, or conduct that would otherwise bring the administration of justice into disrepute, such as posing as a priest in a confessional, the statement would almost certainly be rejected as evidence of the truth of its contents: see K.G.B., at p. 299 and R. v. Rothman (1981), 1981 CanLII 23 (SCC), 59 C.C.C. (2d) 30 (S.C.C.), at p. 74. Another example would be where the probative value of the statement is outweighed by its prejudicial effect: see Khelawon, at para. 49.

(Emphasis added)

[120] There is no evidence and I reject that the threats or inducements by the police affected what Mr. Moy-Lingomba said in the Part 1 Statements to Mr. Watts when he didn't know he was being recorded and thought he was speaking with an associate who knew to keep their mouth shut.

[121] I am satisfied that there is no connection between the threats and inducements made by the police in the interview and Mr. Moy-Lingomba's Part 1 Statements. In my view, any such connection is not evident on the record and would be mere speculation.

Demeanor

[122] The Defence submits that Mr. Moy-Lingomba's demeanor during the Watts Audio will not be available to the jury. I agree.

[123] However, what must be remembered is that Mr. Moy-Lingomba has agreed he made the Part 1 Statements and he is available to provide all of his explanations that might have been observable through his demeanor to the jury. In many ways, he has already attempted to provide some or all of his explanation.

[124] This court is satisfied that the cross examination of Mr. Moy-Lingomba will provide the jury with sufficient tools to assess the reliability of the Part 1 Statements made by Mr. Moy-Lingomba.

Mr. Moy-Lingomba - the shooter

[125] There is also one further significant portion of Part 1 Statements which may become highly relevant.

[126] During the Part 1 Statements, Mr. Moy-Lingomba's statements include alleged statements by Mr. Ranglin of his long standing motivation for the shooting.

[127] During the course of the Defence cross examination of Mr. Borden, the Defence suggested that the shooting was done by Mr. Borden "or one of his crew" which includes Mr. Moy-Lingomba. During the Defence submissions on this application, the Defence strenuously suggested Mr. Moy-Lingomba was the shooter pointing to opportunity and some identification evidence. The Part 1 Statements also include a statement by Mr. Moy-Lingomba that Mr. Moy-Lingomba and Mr. Borden were at the Rexwood apartment by coincidence that night. The relevance of this statement becomes more significant as to the identity of the shooter given the respective positions taken by the Defence.

Part 2 Statements

[128] Before admitting evidence of a hearsay statement, this court must identify what statements are at issue and be satisfied that the jury can assess what statements were made by Mr. Moy-Lingomba so that the jury could properly assess them for ultimate reliability.

[129] In R. v. Badgerow, 2014 ONCA 272, 119 O.R. (3d) 299, the Court of Appeal dealt with the importance of incomplete utterances. While not fatal to admissibility, it is a factor to be considered:

[146] Before admitting evidence of a hearsay statement, the judge must be satisfied that it can be sufficiently proven to enable the jury to determine the content of the declaration. The issue is illustrated by “incomplete utterances”: R. v. Ferris, 1994 CanLII 31 (SCC), [1994] 3 S.C.R. 756, aff’g (1994), 1994 ABCA 20, 149 A.R. 1 (C.A.). In Ferris, the accused was overheard saying “I killed David”. However, the listener did not hear what was said immediately before or immediately after the utterance. The declarant might have said, for example, “there are people saying I killed David, but I swear on my mother’s grave I didn’t.” Sopinka J., in a brief oral judgment, said that “[the statement’s] meaning was so speculative and its probative value so tenuous that the trial judge ought to have excluded it on the ground its prejudicial effect overbore its probative value.”

[130] This court may have a view as to what it heard Mr. Moy-Lingomba said. But there is some uncertainty. In this portion of the conversation, the uncertainty has not been overcome by Mr. Moy-Lingomba’s evidence as to what was said to him and what he said to Mr. Watts. Mr. Moy-Lingomba disagreed he made the statement(s) suggested he made and he was unsure of what he had said. As a result, unless there is a complete and clear record of the statement:

• How can he be cross-examined on an ambiguous statement?

• What can the jury do with this evidence of what might have been said?

• How can it possibly rely on the bits and pieces of the admitted statements in this part as proof of the contents without the complete context of this exchange?

[131] In these circumstances the lack of a complete and clear recording or memory of Mr. Moy-Lingomba as to what he said in the Part 2 Statements undermines the indicia of reliability.

[132] In my view, given the poor quality of the audio of this portion of Watt's Audio and Mr. Moy-Lingomba's inability to provide viva voce evidence of what he said, this court is not satisfied that this meets threshold reliability. The words of Conrad J.A. of the Alberta Court of Appeal in R. v. Ferris, 1994 ABCA 20, [1994] A.J. No. 19 (C.A.), aff’d 1994 CanLII 31 (SCC), [1994] 3 S.C.R. 756, are particularly apt where portions of the Part 2 Statements cannot be ascertained by the witness who made them and not available to the jury through a clear and complete recording:

We have no idea what the context of the utterance was and thus attaching the label of reliability would be foolhardy.

[133] In these circumstances, without a substantially accurate record, the probative value diminishes tremendously while the prejudicial effect would be high due to the potential misuse of such disjointed statements of Mr. Moy-Lingomba by the jury, I would have exercised my residual discretion to exclude the Part 2 Statements.

CONCLUSION

Part 1 Statements

[134] Both procedural and substantive reliability have been made out in this case for the Part 1 Statements.

[135] I am satisfied that with Mr. Moy-Lingomba's availability for cross examination, his confirmation of the Part 1 Statements made to Mr. Watts, and considering the above factors, there is sufficient threshold reliability to permit the admissibility of the Part 1 Statements. The jury will have the necessary tools to properly and fully determine the ultimate reliability of Mr. Moy-Lingomba's Part 1 Statements.

[136] There are no policy considerations which would warrant the prevention of the Part 1 Statements being admitted for its truth.

[137] The Part 1 Statements shall be admitted for proof of their contents.

Part 2 Statements

[138] Aside from the fact that there were some prior inconsistent portions in the Part 2 Statements, (admitted even by Defence counsel) I am not satisfied that procedural or substantive reliability can be met when the very core of what the prior inconsistent statements are cannot be reasonably ascertained.

[139] The lack of a complete record in these circumstances will leave the jury with an inability to properly assess the truth and accuracy of the Part 2 Statements and the potential for misuse.

[140] The Part 2 Statements shall not be admitted for proof of their contents.

[141] However to the extent that Mr. Moy-Lingomba adopted any statement made therein as true in his evidence at trial, just like any other evidence adopted by a witness at the trial, the jury may consider this evidence for the truth.

Ricchetti, J.

Date: June 29, 2016

CITATION: R v. Ranglin 2016 ONSC 4307

COURT FILE NO.: Crim J(P) 1156/15

DATE: 20160629

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

SHELDON RANGLIN

RULING ON CROWN KGB APPLICATION

RICCHETTI J.

Released: June 29, 2016