Court File and Parties

Court File No.: 22639/14 Date: 2016-10-11 Ontario Superior Court of Justice

Between: Her Majesty the Queen And: Jun Llacuna

Before: R.F. Goldstein J.

Counsel: Gus Kim, for the Crown Jun Llacuna on his own behalf Tom LeRoy, Amicus

Heard: September 26, 27, 28, 29, 2016

[1] On September 27, 2012 someone broke into 15 Glenhaven Road in Toronto. Property was taken. When the homeowner returned from work he called the police. The police attended. The police took fingerprints of various items strewn about the house. About a year later the police had a “hit” on the fingerprints. The fingerprints were on a cookie tin and a toolbox inside the residence. The fingerprints belonged to Jun Llacuna.

[2] Mr Llacuna was arrested on September 14, 2013. He gave a video-taped statement to the police. He told the police that they could check his work to see if he was there on the day of the break-in. At an on-the-record judicial pre-trial, Mr. Llacuna (who was unrepresented) provided a hand-written alibi with contact information for his boss and his girlfriend’s mother. He provided information about the alibi on the record. He said that he had been at work and then at his daughter’s birthday and the police should check. They did. It turned he was not at work. They were unable to verify the birthday information with Mr. Llacuna’s girlfriend’s mother. At a subsequent judicial on-the-record judicial pre-trial the Crown stated that the alibi turned out not to false. Mr. Llacuna (who, again, was unrepresented), made further statements.

[3] The Crown seeks to introduce the video statement and the alibi note into evidence at Mr. Llacuna’s trial. The Crown also seeks to introduce the transcripts of the statements made by Mr. Llacuna at the two judicial pretrials.

[4] Mr. Llacuna concedes that the video statement is voluntary. However, he contests that the alibi meets the test as “demonstrably false”.

[5] For the reasons that follow, I agree that the video statement is voluntary. I am satisfied beyond a reasonable doubt of that. The Crown application to admit it into evidence is granted although the Crown may not introduce those parts of the video where Mr. Llacuna tells the police they may check with his work to see where he was on the day of the offence. The video may be used to cross-examine Mr. Llacuna, if he chooses to testify.

[6] The Crown’s second application, to introduce the alibi as after-the-fact evidence of consciousness of guilt, is dismissed. For the reasons that follow, I find that it does not fit the threshold test. As well, the Crown will not be permitted to introduce the transcripts of the judicial pre-trials. Admission of the transcripts would be highly unfair.

ANALYSIS

[7] Mr. Llacuna admits that the statement is voluntary. Mr. LeRoy, amicus, supports him in that. I therefore only need to determine whether the alibi meets the “demonstrably false” test. Even if it is, I must also determine whether the transcripts of the judicial pre-trial may be admitted.

[8] Where an alibi is advanced by an accused person and rejected, that rejection by itself cannot permit an inference of guilt. The falsity of an alibi does not mean a person is guilty. An attempt to fabricate an alibi may, however, be tendered as evidence of consciousness of guilt. It is not the failed alibi that provides consciousness of guilt. It is the attempt to deceive the jury: R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445 at paras. 62-63, 66.

[9] Before an alibi can even be put to the jury as evidence of consciousness of guilt, a trial judge must determine if it is admissible. In R. v. O’Connor (2002), 62 O.R. (3d) 26, (C.A.) O’Connor A.C.J.O. described the threshold this way:

When the Crown seeks to introduce evidence to show that an accused has fabricated out-of-court statement[s], the judge should determine at that stage whether there is sufficient evidence of fabrication, independent of the evidence tending to show the falsity of the statements, which, if accepted, could reasonably support a finding of fabrication. If there is not sufficient evidence to support a finding of fabrication, then the Crown should not be permitted to call the evidence showing the accused's statements were false. There would be no purpose in the Crown proving that the accused made a false statement if the inference from a conclusion of fabrication is not available. To call the evidence showing an accused's statement is false in that circumstance could only tend to confuse the trier of fact and possibly unfairly prejudice the accused.

[10] There are four key pieces of evidence that the Crown seeks to introduce as consciousness of guilt. These are: the video statement, the alibi note, and the two transcripts of the judicial pre-trials. I will deal with each in turn.

(a) Is The Video Alibi Demonstrably False?

[11] Mr. Kim, for the Crown, argues that the video statement is demonstrably false. Mr. Llacuna’s punch-card clearly indicates that he was not at work. He says that the explanation that Mr. Llacuna gave to Constable Jugpall is evidence of consciousness of guilt.

[12] I must respectfully disagree for two reasons. First, it is not unreasonable that an individual would be unable to provide an accurate explanation of where he was on a random day one year earlier. He did work at GB Scrap Metal at the time. “Demonstrably false” requires something more than being wrong. Second, I am not persuaded that what Mr. Llacuna told Constable Jugpall even constitutes an alibi.

[13] On September 14, 2013 Constable (now Sergeant) Catenacchio of the Toronto Police contacted Mr. Llacuna and asked him to come to 12 Division. Mr. Llacuna rode his bike there. When he arrived he was arrested, paraded, booked, and charged with break and enter. He was given his rights to counsel, the caution, and the secondary caution. He was taken to an interrogation room where Constable Jugpall questioned him. He admitted that he lived in the area. He said that he sometimes went scavenging for scrap metal. He admitted that he knew the house and sometimes scavenged scrap metal from the garbage. Mr. Llacuna denied that he had broken into 15 Glenhaven. He denied that he had ever been inside 15 Glenhaven.

[14] Mr. Llacuna worked at GB Scrap Metal as a labourer. Viviana Bois, the operations manager, testified that Mr. Llacuna sometimes brought in scrap metal. The company paid him for it. Bringing in scavenged scrap metal was a very common practice among employees.

[15] During the interview Mr. Llacuna told Constable Jugpall to check his time card at work. The following exchange occurred:

JUGPALL: Okay. If I had told you that ah basically we have a fingerprint that matches – LLACUNA: I, I no sir. JUGPALL: - to you from inside this house. This didn’t happen today, this didn’t happen yesterday, this happened in September of last year the 27th of September. LLACUNA: I have no idea sir. JUGPALL: Okay it happen in the morning between September 27th at 4:30 pm. LLACUNA: I have no idea sir. JUGPALL: Okay and your fingerprint was found in this house. LLACUNA: I have no idea sir. JUGPALL: Okay. I’m telling you your fingerprint was found in that house. How, how would that fingerprint – LLACUNA: I have no clue sir. JUGPALL: No clue. LLACUNA: Even you can check the date in there and you put my work and check it work. JUGPALL: Okay, how do you, when you go to work how do you punch in like what, what, how do you – LLACUNA: The punch, the puncher. JUPALL: This is a time card. LLACUNA: Yes sir.

[16] Mr. Llacuna then went on to describe the punch card system to Constable Jugpall. Each employee has a punch card. The card must be punched when the employee arrives for work, and punched when the employee leaves for the day.

[17] It is unlikely that any person can simply pinpoint their whereabouts on a random day one year earlier on the spot, with no ability to check a calendar or verify by some other means. Moreover I think it is even doubtful that Mr. Llacuna’s statement on the video can be called an alibi. Black’s Law Dictionary defines an alibi as:

A defence based on the physical impossibility of a defendant’s guilt by placing the defendant in a location other than the scene of the crime at the relevant time.

[18] Mr. Llacuna did not tell positively tell Constable Jugpall that he was at work. He told Constable Jugpall to check his punch card at work. I appreciate that an inference could be drawn that this was a form of alibi, but in my view something stronger is required in order for a jury to draw an inference of consciousness of guilt.

[19] Accordingly, that part of video may not be played as part of the Crown’s case in chief. The Crown may, however, play those parts of the video that are inculpatory (such as Mr. Llacuna’s admission that he may have scavenged garbage at 15 Glenhaven and lives in the area). The Crown is also permitted to use all parts of the video to cross-examine Mr. Llacuna, should he testify. I will instruct the jury as to the limited use that they may make of the video should that be necessary.

(b) Is The Alibi Note Demonstrably False?

[20] Mr. Kim also argues that the hand-written alibi note is also demonstrably false. As noted, Mr. Llacuna’s punch-card clearly indicates that he was not at work. Furthermore, the police were unable to contact his girlfriend’s mother and verify any details about his daughter’s birthday.

[21] The evidence certainly demonstrates the falsity of the alibi. Mr. Llacuna was not at work on the day of the break-in. As O’Connor A.C.J.O. notes, however, the Crown is obliged to do more than just show that the alibi is false. There must be independent evidence that could reasonably support a finding of fabrication. There is none.

[22] Constable Barnes testified that he investigated the alibi note. He interviewed Vasilia Bois and obtained Mr. Llacuna’s time card. He also testified that he called the number provided for Lori Clark about once a week for about six months and left several messages for her. There was no response.

[23] Mr. Leroy, the amicus, noted that the police did not go further than simply checking Ms. Clark’s number, although he was careful not to criticise the police.

[24] What is the duty of the police to investigate an alibi? Mr. Peter Cory, formerly of the Supreme Court of Canada, sitting as a commissioner of inquiry into the wrongful conviction of Thomas Sophonow, recommended (among other things) that police officers other than those involved in the investigation should investigate an alibi. In this case, Constable Barnes was detailed by the officer-in-charge to investigate the alibi. As far as I can tell he was not otherwise involved in the case.

[25] In my respectful view the police complied with their duty and were not required to do more than they did. The police have a duty to investigate whether the alibi has any validity and is capable of raising a reasonable doubt. As Mr. Cory noted, they must give adequate consideration to an alibi. They have a duty to follow the evidence, and bring all the evidence – incriminating as well as exculpatory – to the Crown. Constable Barnes attended at GB Scrap Metal and interviewed Ms. Bois at Mr. Llacuna’s request. The information did not help Mr. Llacuna. As for the information about Ms. Clark, she had no other connection to the crime under investigation. The information about her came from Mr. Llacuna. It would not have been unreasonable for Constable Barnes to draw the conclusion that Ms. Clark’s evidence would have been equally unhelpful to Mr. Llacuna, given that she did not respond to any of his messages.

[26] Vasilia Bois testified on the voir dire. She testified that from a review of the records of GB Scrap Metal that Mr. Llacuna was not at work on September 27, 2012. Employee punch cards record when an employee punches in and punches out. If an employee doesn’t punch the card, he or she does not get paid. If the card is blank for a particular day that means the employee did not punch in. Mr. Llacuna’s card was blank for September 27, 2012. That meant he did not punch in that day. Ms. Bois testified that sometimes employees do not punch in but later say that they are at work when they discover that they have not been paid for that day. In those cases, the employee’s supervisor is required to verify that the employee was at work. She said that Mr. Llacuna did not make it known that he had been at work on September 27, 2012 but failed to punch in.

[27] The punch card and the evidence of Vasilia Bois is independent evidence tending to show that the alibi note is false. Again, being wrong does equate to deliberate fabrication. There must be some evidence of a deliberate attempt to fabricate. For example, if there were evidence that Mr. Llacuna had asked Ms. Bois to lie for him that would clearly be independent evidence. If there were evidence that he had attempted to tamper with his punch card that would also be independent evidence.

[28] It is important to note that Mr. Llacuna is not being given a free pass to lie. If he testifies, he can be cross-examined and his credibility may or may not be affected. All that has happened is that the Crown has been unable to bring forward independent evidence of fabrication.

[29] Thus, the alibi note may not be introduced as part of the Crown’s case in chief as after-the-fact conduct evidence of consciousness of guilt. Whether or not the note may be used to cross-examine Mr. Llacuna, should he choose to testify, is best left until the trial unfolds and there is an evidentiary background.

(c) Should the transcripts be introduced into evidence?

[30] The Crown seeks to introduce the transcripts of two judicial pre-trials held in the Ontario Court of Justice. These pre-trials took place on the record before Madam Justice Oleskiw on July 7, 2014 and October 20, 2014. Mr. Llacuna was not represented and spoke through an interpreter on both occasions. The Crown says that there are utterances made by Mr. Llacuna that demonstrate his consciousness of guilt.

[31] It is difficult for me to fathom circumstances under which transcripts of a self-represented accused at a judicial pre-trial should be introduced against him at trial as part of the Crown’s case in chief – or even used to cross-examine him.

[32] Some background is necessary. At the July 7, 2014 pre-trial Crown counsel informed the judge, Justice Oleskiw, that Mr. Llacuna was alleging an alibi. She did not have enough information to verify it. Crown counsel suggested that Mr. Llacuna simply write down the contact information for his alibi witnesses on a sheet of paper. Justice Oleskiw warned Mr. Llacuna that if he did not give the Crown enough information it could be the basis of a negative inference to be used against him at trial.

[33] Mr. Llacuna provided a note indicating that he had been at work part of the day on September 27, 2012. He had then left to go and attend his daughter’s birthday party. He gave a contact number for his boss and a contact number for his girlfriend’s mother, Lori Clark. This was the note that was investigated by Constable Barnes.

[34] At the October 20, 2014 pre-trial Crown counsel informed Justice Oleskew that the police had interviewed Mr. Llacuna’s boss. The police had also obtained his punch card for the day of the break-in. The punch card indicated that Mr. Llacuna had not been at work that day. Mr. Llacuna insisted on the record that he had in fact been at work for half a day and then had taken half a day for his daughter’s birthday. Justice Oleskiw again warned him that if he failed to give the Crown detailed information the court could draw an adverse inference.

[35] Mr. Llacuna’s utterances might qualify as admissions against interest. They would be admissible on that basis. There are, however, strong policy and legal reasons that militate against using the utterances of an un-represented accused person at a judicial pre-trial against him.

[36] First, this particular proceeding appears to have been mandatory. Section 536.4 of the Criminal Code permits a justice of the Ontario Court of Justice to order a conference prior to a preliminary inquiry. The purpose is to identify the witnesses and the issues. Rule 4.2(2)(b) of the Rules of the Ontario Court of Justice require a self-represented accused to attend the hearing. An accused person is, in essence, compelled to attend and make admissions – or at least utterances. No authority is required for the proposition that such compelled utterances are not admissible against an accused person because it is so obvious in our system of justice.

[37] Second, as a practical matter, pre-trial conferences involving self- represented accused persons are routinely held on the record. This is done in order to protect the parties. Recording, however, is not mandatory. What if such conferences were not held on the record? The only way to have the evidence introduced at trial would be to compel one of the participants to testify about these statements. Who would do that? Crown counsel? The judge? I don’t think I need to even answer that question.

[38] Third, judicial pre-trial conferences are held without prejudice. Using comments or admissions made at a pre-trial conference would obviously undermine the process and discourage the making of admissions – or even saying anything at all. Accused persons would be unlikely to participate in them if they understood that their utterances – even if they were outright lies – would be used against them. And if they did not understand that (which is likely) then to use those utterances would simply be unfair. Imagine the following scenario: a self-represented person is charged with aggravated assault. At the judicial pre-trial he or she admits on the record to striking the victim and offers to plead guilty to simple assault. Surely the Crown not be permitted to read in the transcript of that admission as part of its case in chief.

[39] Fourth, I reject the notion that Mr. Llacuna impliedly waived the privilege that would ordinarily cloak settlement discussions. I say that because the Crown has not established, by independent evidence, that the alibi note is a deliberate fabrication (as opposed to a mistake that Mr. Llacuna is stubbornly holding to). Even if Mr. Llacuna did waive privilege by fabricating the note, it was a waiver that was clearly made without any appreciation whatsoever of the consequences by a self-represented person with limited English. I think it would be unfair to use the transcripts against him under those circumstances. Even if the transcripts were admissible, I would unhesitatingly exercise my discretion as a trial judge to exclude them from evidence. A trial judge always has a discretion to exclude evidence that would operate unfairly or prejudice the fair trial rights of an accused person.

DISPOSITION

[40] The Crown’s application to admit the video is granted with the exception of the portion where Mr. Llacuna indicates that the police may check with his employer for his whereabouts. The Crown’s application to introduce the video, as well as the alibi note and the transcripts as after-the-fact conduct evidence in order to show consciousness of guilt, is dismissed. The question of whether the alibi note may be used to cross-examine Mr. Llacuna will be dealt with if he testifies. The transcripts of the judicial pre-trials may not be used for any purpose at this trial.

R.F. Goldstein J. Released: October 11, 2016

COURT FILE NO.: 22639/14 DATE: 20161011 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN – and – JUN LLACUNA REASONS FOR JUDGMENT R.F. Goldstein J.