COURT FILE NO.: CR-17-70000591-0000

DATE: 20190225

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

LANCE BURKHARD

Scott Patterson and Elizabeth Kozak, for the Crown

John Rosen and Daniel Michael, for Lance Burkhard

HEARD: November 21, 2018

R.F. GOLDSTEIN J.

RULING ON CROWN KGB APPLICATION

[1] Wasfi Ghalban owned a tattoo parlour. Phillip Frauts was a tattoo artist. He worked at the tattoo parlour. He believed that the tattoo parlour was very profitable. He believed that Mr. Ghalban kept a large amount of cash in his apartment. Frauts decided to rob Mr. Ghalban. He recruited Kyle Schindermann to carry out the robbery. Schindermann recruited Lance Burkhard to help him. Burkhard recruited Christopher Fuller to act as a lookout.

[2] Burkhard and Schindermann carried out the robbery. They planned to conduct a home invasion. The home invasion went drastically wrong. Mr. Ghalban was stabbed in the neck. His jugular vein was cut. He quickly bled to death. Burkhard and Schindermann got away with a large amount of cash.

[3] The police were initially stymied. They had video footage from Mr. Ghalban’s apartment building from the time of the home invasion. There were two men on the video. The police believed that these two men were the killers. They could not, however, identify them. They eventually received information that led them to suspect Frauts organized the robbery. Undercover police officers approached Frauts. They pretended to be sophisticated criminals. They eventually gained Frauts’s trust. Frauts introduced them to Schindermann. The undercover officers persuaded Schindermann and Frauts to describe the events leading to Mr. Ghalban’s death. Frauts told the officers that he organized the robbery. Schindermann told them that he and Burkhard carried it out. Schindermann described the killing. He pointed the finger at Burkhard as the person who stabbed Mr. Ghalban (I will refer to Schindermann’s statement to the undercover officers as a “confession”).

[4] Burkhard was charged with first-degree murder. In June 2017 Frauts, the organizer, pleaded guilty to manslaughter. He received a sentence of ten years. Fuller, the lookout, pleaded guilty to manslaughter in February 2018. He received a sentence of five years. Schindermann was charged with first degree murder on a separate indictment. His trial was to have taken place in April 2019. Instead, in January 2019, while I was preparing these reasons, he pleaded guilty to second degree murder.

[5] Burkhard’s trial commenced on November 5, 2018 before me with a jury. Schindermann testified as a Crown witness. Schindermann told the jury several things in his examination in chief that were different from what he told the undercover officers. The Crown applied under s. 9(2) of the Canada Evidence Act, R.S.C., 1985, c. C-5, to cross-examine on some of the contradictions. There was no opposition from Mr. Rosen, Burkhard’s counsel. I granted the application. Mr. Schindermann continued to testify. He did not accept that there were contradictions from his statement to the undercover officers. The Crown sought to introduce the confession to the undercover officers into evidence as necessary and reliable evidence. At the time I ruled that the Crown could do so for the truth of its contents. I indicated that my reasons would follow. Burkhard was convicted by the jury of first degree murder on December 6, 2018.

[6] These are my reasons for admitting Schidnermann’s confession into evidence at Burkhard’s trial.

BACKGROUND

[7] The background facts to this application are taken from several sources.

[8] In May 2018 Schindermann applied to have his confession excluded from his trial: R. v. Hart, 2014 SCC 52, [2014] SCR 544. My colleague Justice Then heard the application. On October 12, 2018 Justice Then ruled that Schindermann’s confession was admissible: R. v. Schindermann, 2018 ONSC 6073. I have taken some of the background facts from Justice Then’s ruling.

[9] On November 13, 2018, in the course of Mr. Burkhard’s trial, I ruled on a Crown application to introduce discreditable conduct evidence: R. v. Burkhard, 2018 ONSC 6966. I have taken some of the background facts from my ruling.

[10] Finally, I have taken some of these background facts from evidence that came out during the trial or that I was aware of from evidence filed by Crown counsel on pre-trial motions.

(a) The Crown and Defence Theories

[11] The Crown theory was that Frauts and Schindermann planned the robbery. Schindermann recruited Burkhard, who had experience carrying out home invasions. Burkhard in turn recruited Fuller to act as scout and lookout.

[12] The Crown further theorized that Schindermann and Burkhard intended to execute the robbery together. They entered the apartment and assaulted Mr. Ghalban. They did not initially intend to kill Mr. Ghalban, but developed the intention to kill him (or meant to cause Mr. Ghalban serious bodily harm and were indifferent as to whether he died). They developed this intention during the course of the robbery when Mr. Ghalban fought back. That made the killing murder. Since the killing occurred while they confined Mr. Ghalban, that was an aggravated form of murder and, therefore, first degree murder.

[13] The Crown theorized that there were three routes to liability for first degree murder for Burkhard:

(i) Burkhard stabbed Mr. Ghalban in the course of confining or attempting to confine him. Alternatively, Schindermann stabbed Mr. Ghalban in the course of confining him while Mr. Burkhard delivered kicks to Mr. Ghalban’s head. Burkhard was therefore guilty as a principal or joint principal in the first degree murder;

(ii) Schindermann stabbed Mr. Ghalban in the course of confining him or attempting to confine him. Burkhard aided Schindermann in the murder and was therefore guilty as an aider in the first degree murder; or,

(iii) Schindermann stabbed Mr. Ghalban in the course of confining or attempting to confine him. Burkhard was a party to Schindermann’s murder of Mr. Ghalban and was therefore guilty as a party in the first degree murder.

[14] I left all three routes of conviction on first degree murder open to the jury.

[15] The defence theory was that Schindermann was actually the person who stabbed Mr. Ghalban during the course of the robbery. He did so without Burkhard’s knowledge or participation. Indeed, Burkhard’s counsel argued that the forensic evidence (primarily blood transfers and bloody footprints) indicated that Burkhard was out of the room when Schindermann stabbed Mr. Ghalban. As a result, Burkhard should be found guilty of the lesser and included offence of manslaughter.

[16] I left the jury to consider the lesser and included offences of manslaughter and second degree murder. The jury obviously rejected that defence theory since they convicted Burkhard of first degree murder. It is not necessary for me to determine which route the jury took.

(b) The Plan To Rob Ghalban

[17] Mr. Ghalban owned Ultimate Tattoo on Yonge Street in downtown Toronto. Phil Frauts worked as a tattoo artist at Ultimate Tattoo. (Frauts testified after Schindermann took the stand. He said that his nickname was “Phil The Drill”. He attributed the nickname to his tattooing skills.) Frauts was aware that Mr. Ghalban also sold fake identification for cash. Mr. Ghalban’s businesses appeared to generate a lot of cash.

[18] In addition to being an experienced tattoo artist, Frauts was also an experienced criminal. Frauts told the undercover officers that he was comfortable doing shady things for business if necessary, such as moving a body. As I told the jury:

Mr. Frauts has a lengthy criminal record, starting as a young offender. He also has several adult convictions, including one for assault causing bodily harm and assault with a weapon for which he received a 90 day sentence and probation. He was also convicted of trafficking drugs and breaching a probation order. He admitted to selling cocaine, steroids, and hashish to an undercover cop but claimed he was just doing a friend a favour and is not a drug dealer. He did admit to selling steroids but testified that everyone does it. He was also convicted of a domestic assault. Mr. Frauts pleaded guilty to manslaughter for the death of Wasfi Ghalban. He is currently serving a ten year sentence.

[19] Mr. Ghalban lived in Apartment 216 of the Toronto Community Housing Corporation building at 200 Wellesley Street East. Frauts believed that Mr. Ghalban kept large amounts of cash in his apartment. He conceived a plan to rob Mr. Ghalban.

[20] Frauts described the plan to the undercover officers this way:

FRAUTS: I’m gonna tell you what happened. Okay, me and this guy found out this guy had a bunch of illegal money.

UC H: Okay.

FRAUTS: So the plan was grab him, tie him up, take the money, see (Unintelligible).

UC H: So you two. You two kinda sat down and said…

FRAUTS: Well, I knew… (Coughs) …the money was there. I told him. He took care of the other part. He enlisted help of this other guy…

UC H: Right.

FRAUTS: …followed Wasfi (ph) to his house, whatever…

UC H: Okay.

FRAUTS: …was supposed to tie him up. During this situation, from what I understand, this guy freaked out, fucking stabbed him in the neck.

UC P: Who? The…

FRAUTS: The other guy.

UC P: Who? The…

FRAUTS: The other guy.

UC P: … other guy?

FRAUTS: There was not supposed to be any knives, no… because it’s illegal money, if you don’t kill him he can’t go to the cops. Bing, bang, boom. You live by the sword, die by the sword. You’re in the game, this is what happens.

UC P: Yeah.

UC H: So you… so you two kinda just said, let’s just… like, you two kinda worked it out beforehand.

FRAUTS: Well, I told him the money was there and… and he had done the situation before with some other people and so I was like, “Okay you know what to do, nothing needs to be said.”

[21] I summarized the evidence for the jury this way:

Schindermann and Frauts discussed the plan in detail. They initially planned to conduct a break-and-enter but ultimately determined that would not work. They then decided to conduct a home invasion. Mr. Schindermann told Mr. Frauts that he had participated in other home invasions and knew what to do. They agreed Mr. Frauts could not participate because he knew Mr. Ghalban well. Mr. Frauts was aware that the plan was to conduct a home invasion, subdue and confine Mr. Ghalban, knock him out if necessary, and steal the money.

[22] Frauts told Schindermann that Mr. Ghalban kept between $200,000 and $500,000 in the apartment.

[23] Since Frauts knew Mr. Ghalban, he obviously could not carry out the robbery. That was why Frauts recruited Schindermann to execute the plan. Schindermann, in turn, recruited Burkhard. Schindermann testified that the plan was to gain entry to the building by following someone into it. They would then wait for Mr. Ghalban. As Mr. Ghalban entered the apartment, they would rush him, assault him, flash a replica firearm (actually a broken BB gun), tie him up, and steal his money. Burkhard agreed with the plan. Burkhard in turn recruited Fuller to act as lookout and scout. Schindermann carried out surveillance of Mr. Ghalban prior to the murder by himself. Schindermann and Burkhard also carried out surveillance together.

(c) The Robbery and Murder

[24] On December 1, 2014 Fuller followed Mr. Ghalban after he left the tattoo parlour. Mr. Ghalban went to a Wendy’s restaurant and then to his apartment. Fuller updated Burkhard and Schindermann as he went. Burkhard and Schindermann entered 200 Wellesley Street East at 9:56 pm. They assaulted Mr. Ghalban as he opened the door of Apartment 216. They then robbed and killed him. They ransacked his apartment. They stole a great deal of money – although they also left behind over $250,000 in cash. Burkhard and Schindermann left the building at 10:31 pm but from a different exit. When they entered they had been carrying empty knapsacks. The knapsacks were full when they left.

[25] Mr. Ghalban was stabbed in the neck. His jugular vein was almost severed. He bled to death. There was a wound in the back of his head and blunt force trauma to his head. The trauma was the result of multiple overlapping blows. The trauma likely preceded the stabbing to the neck.

[26] Schindermann told the undercover officers that Burkhard stabbed Mr. Ghalban. Burkhard’s position in the trial was that Mr. Schindermann stabbed Mr. Ghalban. Mr. Burkhard did not testify. His counsel argued that the forensics showed that Schindermann carried out the stabbing.

(d) The Undercover Operation

[27] The police investigation began with forensic examination of Apartment 216 and the stairwell leading out the back. The two individuals now known to be Burkhard and Schindermann were seen on surveillance video. The police could notidentify them at the time. The investigation stalled.

[28] The police initially interviewed Frauts. The police had reason to be suspicious of him, given his criminal record and his proximity to Ghalban. He denied knowledge or involvement.

[29] Frauts had a girlfriend named Cynthia Cayouette. He and Cayouette had many arguments. She was aware that Frauts had organized the home invasion. In a moment of anger at Frauts, Cayouette disclosed his involvement to one of her friends through a series of text messages. That friend, in turn, went to the police. She provided the police with the text messages.

[30] The police launched an undercover operation. Two undercover police officers, “Stew” and “Sophie”, attended the tattoo parlour. They ingratiated themselves with Frauts. They purported to be sophisticated criminals. They had high-level connections to law enforcement. They could solve complex criminal problems. They told Frauts that they eschewed violence as bad for business. They tried to interest Frauts in a venture involving a gym, drugs, and escorts. Between October 2015 and March 2016 they built up a rapport with Frauts. The undercover officers tried to persuade Frauts to connect them to Schindermann. They were unsuccessful. The officers decided to introduce a problem that needed solving.

[31] The problem that Stew and Sophie needed to solve was the “Russian lady”. This Russian lady came to the tattoo parlour and introduced herself to Frauts and Cayouette. She said she was Mr. Ghalban’s girlfriend. She indicated that she had a video of the robbery and murder from secret cameras in the apartment. She told them that the name “Phil” was mentioned on the video. She threatened to take the video to the police if Mr. Frauts did not pay her. She provided an email address.

[32] In fact, the Russian lady was another undercover police officer. She continued to try to obtain money from Frauts. Sophie and Stew told Frauts that they could take care of problems associated with the Russian lady. They said that they had high-level connections to law enforcement that could help them make the evidence disappear. For that, however, they needed to understand Schindermann’s full involvement. It was their way of getting Frauts to introduce them.

[33] Eventually the plan succeeded. Sophie and Stew (and other undercover officers who appeared to be part of the criminal organization) met with Schindermann and Frauts. The officers persuaded Schindermann that they needed to know all of the details so that they could use their connections to clean up the evidence. The also persuaded Schindermann and Frauts that they had access to sophisticated resources. They could hack the Russian lady’s emails. To prove it, they showed “screen capture” photographs from the incriminating “video”. In fact the “screen captures” were photographs taken by forensic officers when they examined the crime scene. The photographs were altered to look like screen captures.

[34] On March 4, 2016 Schindermann confessed. Of course, he did not know that it was a confession. He and Frauts provided a highly detailed account of the robbery and death of Mr. Ghalban. Frauts could obviously only speak about the specific events of the robbery and death based on Schindermann’s description.

[35] Schindermann described what happened to the undercover officers. These are the material aspects of his confession that the Crown wished to introduce for the truth of its contents:

SCHINDERMANN: Chris is the guy we had to f... follow Wasfi home, while me and Lance jumped in my truck, went and parked in the same spot...

(Background noise) ...waited in the stairwell for Wasfi to get home. Once Chris called one of us to say Wasfi was home, or he’s…

UC H (Stew): Okay.

SCHINDERMANN: … on his way home walking in the building, Lance would watch out the door to see when he’s walking up, follow him in the apartment, push him in.

UC H: Lance... so that’s... that’s how you guys kinda (ph) organized it.

SCHINDERMANN: Um...

UC H: Where’s this Chris guy at this point?

SCHINDERMANN: Gone. He left.

UC H: His only job was to follow him?

SCHINDERMANN: Yeah. And then um, went inside, Lance had a fake B.B. gun and a knife on him and we went inside and um, Lance pointed at him and said, police, get down. And the guy didn’t get down, he started freaking out. So he started yelling and screaming, nobody hurt him, and big tussle came about, and I punched him with... over here, with my knuckle, and um... but before that we were fighting, tussling um... and then I left... I left Lance alone for a second and he stabbed him. Stabbed him like, two or three times. I don’t even... I don’t even know. And then when I came back to help him, covered in blood. Blood was everywhere. So, you know, naturally what we’re gonna try to do is put the guy down and tie him up and still... gonna... we’re not gonna just leave. What the hell’s the point of going there in the first place, you know what I mean? So, tied the guy up... we’re didn’t tie... I did... we didn’t get to tie him up.

UC H: So how did you tie him, like, with what?

SCHINDERMANN: Eventually, what happened was he got tired to the point where he lay on the ground and I held him down. I tied one piece on him, held him with that and I...

UC H: That’s a...

SCHINDERMANN: ...I held his other hand...

UC H: You held one piece of what? That...

SCHINDERMANN: The ta... the zip tie.

UC H: So you got one zip tie on his hand?

SCHINDERMANN: Yeah.

UC H: Okay.

SCHINDERMANN: And um...

UC H: And you held him down...

SCHINDERMANN: ...I held him down...

UC H: ...with one zip tie on his hand.

SCHINDERMAN: One hand in a zip tie and one hand was ho... holding him down.

UC H: Okay.

SCHINDERMANN: And then uh... and then he was running around the house searching for the money or whatever.

UC H: This Lance dude?

SCHINDERMANN: Yeah. And um... and then I realized that, you know, after I realized there... that there was fucking blood everywhere I was... I kept on saying, “B” like, “B” like, I didn’t want to say his name.

UC H: Yeah.

SCHINDERMAN: So I kept on saying, “Yo ‘B’, yo ‘B’ like, what the fuck man? Like, let’s... let’s just leave man, this is fucked up.” He’s like, “No, we’re not leaving because there’s... otherwise I’m gonna waste my time,” and this and that, “I didn’t come here for no reason. After that, fuck that.” He kept on look... going around, looking around, found everything and then he ca... after it was done he came to me, told me to wash my hands. So I went and washed my hands. I wiped everything down um...

UC H: Where’d you do that?

SCHINDERMANN: In the bathroom.

UC H: In... in... in the bathroom...

SCHINDERMANN: Yeah.

[36] Schindermann told the undercover officers that the stabbing happened on the balcony when he left Burkhard alone with Mr. Ghalban. This was another of the material aspects of the confession that the Crown intended to introduce for the truth of its contents:

UC P: Like, where did you go? Or like…

SCHINDERMANN: I… What happened was we ended up on the balcony and we were fighting on the balcony. (Clears throat) And then I went, for two seconds, to go in the bag to get zip ties.

UC P: Sorry, to…

SCHINDERMANN: Zip ties.

UC P: Okay.

SCHINDERMANN: I came back…

UC H: Zip ties are like the uh… the things like you pull through? Like the…

FRAUTS: Yeah, yeah.

UC H: Plastic ties.

SCHINDERMANN: You know like, they’re… construction guys use them.

UC H: Yeah, yeah.

SCHINDERMANN: Went to go, come back, and the guy’s covered in blood. And I’m like, “What the fuck did he just do?” Like, “What the fuck am I even doing here…

FRAUTS: I’ve never even heard this.

SCHINDERMANN: …anymore?” You know what I mean? Like, I’m about to leave. I wanna leave. He’s like, “You leave me I’m gonna fucking kill you.” I’m like, “Okay.” So I just held the guy down while he searched and grabbed all everything and as soon as he was done, we left.

[37] Schindermann also told the officers that they took $162,000.00 from the apartment, of which he received $80,000.00. He said that he gave Frauts $27,000.00 from the robbery. Frauts confirmed that.

(e) Schindermann’s Evidence At Trial

[38] At trial, I summarized the key part of Schindermann’s evidence to the jury this way:

Mr. Schindermann testified that after placing Mr. Ghalban in the dining room, he was put on the ground. He was on all fours on the floor of the dining room. Mr. Burkhard punched him while he was on all fours in the dining room. Mr. Schindermann testified that he then dragged Mr. Ghalban from the area in front of the dining room television to the area near the television.

Mr. Schindermann testified that he put his right knee over Mr. Ghalban’s back, and his left knee in the other direction. Mr. Ghalban was on his stomach. He was crouched on Mr. Ghalban’s left side, closer to the balcony. He put a zip tie on his right wrist, but smelled a bowel movement. To Mr. Schindermann, that meant that Mr. Ghalban had died. He testified that he put no pressure on Mr. Ghalban because he was already dead. His knee did not touch Mr. Ghalban; it was floating or hovering above Mr. Ghalban’s back. At that point, Mr. Burkhard was running around the apartment looking for money. Mr. Burkhard, however, got frustrated and came over to Mr. Ghalban to ask him where the money was. He tried to cut Mr. Ghalban’s finger, and then stomped on his head.

(f) Key Differences Between Schindermann’s Evidence And His Confession

[39] In his evidence at trial, Schindermann claimed that there was no real difference between what he told the jury and what he told the undercover police officers.

[40] Clearly there were important differences. I highlighted a key difference for the jury:

In some important respects, Mr. Schindermann’s evidence before you about his role in the death of Wasfi Ghalban was different from what he told to the undercover police officers. Just as an example, he told the undercover officers that he put his knee on Mr. Ghalban’s back to control him. In contrast, he testified in this trial that his knee was “floating” above Mr. Ghalban, and that Mr. Ghalban was likely dead when he did that.

[41] Schindermann also testified that they left scissors with Mr. Ghalban. They left the scissors, he said, so that Mr. Ghalban could get himself loose. He did not mention the scissors either to Sophie and Stew or at the preliminary inquiry.

ISSUES AND ANALYSIS:

[42] Schindermann’s confession was a prior inconsistent statement. As a prior inconsistent statement, the confession is a hearsay statement that is generally inadmissible for the truth of its contents: R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5. In the seminal case of R. v. K.G.B., 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740, the Supreme Court held that a prior statement could be admitted pursuant to a principled exception to the hearsay rule. As long as the prior statement was made under oath or solemn affirmation, recorded, and its maker was subject to cross-examination, then the statement was admissible.

[43] The law has evolved considerably over many cases since K.G.B. Now, the question is whether the hearsay dangers associated with a prior statement can be overcome: Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787 at para. 61. Those dangers can be overcome in two ways: either through procedural reliability or substantive reliability. In R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720 Karakatsanis J. briefly described the two types of reliability at para. 30:

• The presence of adequate substitutes for testing truth and accuracy (procedural reliability).

• Sufficient guarantees of reliability or inherent trustworthiness (substantive reliability).

[44] In order to admit the confession for the truth of its contents, the Crown in this case was required to establish necessity and reliability:, Youvarajah, at paras. 26-27. The defence agreed that because Schindermann had effectively recanted, necessity had been established: Khelawon, , at para. 78; Youvarajah, at para. 22.

[45] The reliability that the Crown was required to establish before me was threshold reliability. Ultimate reliability was for the jury: Youvarajah, at para. 23. I retained a discretion to exclude the evidence where the prejudicial effect of admitting the confession outweighed the probative value. As the trial judge, therefore, I had a gatekeeper function. The key difference between ultimate and threshold reliability is not one of degree. It is substantive. Threshold reliability concerns admissibility. Ultimate reliability concerns whether the statement can be relied upon and its probative value.

[46] In a nutshell, my job was to determine whether there were sufficient indications of reliability in order to “afford the trier of fact a satisfactory basis for evaluating the truth of the statement”: Paciocco and Streusser, the Law of Evidence, 6th Ed., at pp. 122-23, quoted in Youvarajah, at para. 24. My job was limited to determining admissibility: Khelawon, at para. 50.

[47] Procedural reliability and substantive reliability can work in tandem. A trial judge must, however, take care not to bootstrap a statement into admissibility simply because it meets some aspects of procedural reliability and some aspects of substantive reliability.

[48] In my respectful view, therefore, the key issues on the question of threshold reliability in this case are these:

(a) Can the specific hearsay dangers presented by Schindermann’s confession be overcome through adequate substitutes for testing truth and accuracy (procedural reliability)?

(b) Are there specific guarantees of reliability or trustworthiness associated with Schindermann’s confession (substantive reliability)?

(c) Can procedural and substantive reliability work in tandem to reach threshold reliability?

[49] In my respectful view, the Crown established that Shindermann’s confession reaches threshold reliability. I find that the specific hearsay dangers are overcome through adequate substitutes for testing truth and accuracy. In other words, it is procedurally reliable. It is admissible on that basis.

[50] In contrast, I find that there are not enough specific guarantees of reliability or trustworthiness associated with Schindermann’s confession to establish substantive reliability.

[51] I do not need to consider whether procedural and substantive reliability together combine to meet threshold reliability.

[52] Before I turn to the specific questions, I return to my colleague Then J.’s assessment of Schindermann’s confession. I note that all counsel were in agreement that the Hart criteria did not apply to Schindermann’s confession. Nonetheless, I think some discussion of Hart is required, for the reasons I will set out.

[53] Schindermann applied exclude his confession in his own case. Schindermann did not seek to exclude the confession on the basis that it was untrue or unreliable. Rather, he argued that the police engaged in inappropriate coercive conduct by playing on his vulnerabilities. Then J. rejected that argument.

[54] In Hart, the Supreme Court found that confessions obtained pursuant to a “Mr. Big” operation are presumptively inadmissible. The burden lies on the Crown to prove that the probative value of the confession outweighs the prejudicial effect. The probative value of the confession is determined by reference to its reliability. The prejudicial effect flows from the fact that the accused has been recruited to a criminal organization. Specifically, the accused’s deeds as a member of the organization, which are introduced to provide the context behind the confession, can constitute bad character evidence. Police misconduct is gauged against the abuse of process doctrine: Hart, at paras. 84-85.

[55] Writing for the majority, Moldaver J. examined how the probative value of a Mr. Big confession is to be assessed. He found that the analysis of threshold reliability under the principled approach to hearsay has parallels:

What factors are relevant in assessing the reliability of a Mr. Big confession? A parallel can perhaps be drawn between the assessment of “threshold reliability” that occurs under the principled approach to hearsay. Under the principled approach, hearsay becomes admissible where it is both necessary and reliable. Reliability can generally be established in one of two ways: by showing that the statement is trustworthy, or by establishing that its reliability can be sufficiently tested at trial (R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at paras. 61-63). The latter route to reliability is often met through an opportunity to cross-examine the hearsay declarant, but this has no application in the present context because the accused is not a compellable witness.

However, the factors used to demonstrate the trustworthiness of a hearsay statement are apposite. In assessing the trustworthiness of a hearsay statement, courts look to the circumstances in which the statement was made, and whether there is any confirmatory evidence (Khelawon, at paras. 62 and100).

[56] Then J. employed the Hart framework. He found at para. 50 of his judgment that the confession not only had probative value, it had high probative value. He pointed to the following facts:

The entire operation lasted approximately six months and the confession was obtained on the first encounter with the undercover officers (UCP and UCH), who presented themselves as wealthy businessmen who could fix Schindermann’s role in the murder of the deceased.

The plan was for another undercover officer (UCZ) to pretend to have video evidence of Schindermann’s and Frauts’ involvement in the murder and would seek money for her silence. UCZ approached Frauts first and then Frauts informed Schindermann of the simulated extortion.

There was no intent that any money was to be paid by the accused to UCZ. Rather, the plan was for UCP and UCH to pretend to pay for the silence of UCZ and to destroy evidence of the accused’s involvement in the murder. The accused would, however, need to provide the details of his involvement so that there would be no loose ends.

No threats of violence were used by any undercover officers and it was reinforced that the undercover officers conducted their business in a non-violent manner. The only other inducement offered by the undercover officers was the prospect of future employment in the business operations of the undercover officers.

The initial confession was elicited in a hotel guest room over a 4.5 hours. The undercovers sensed that the accused was under some stress and sought to make him as comfortable as possible. Counsel for the accused in his submission concedes that there were no threats of violence or coercive conduct on the part of the undercovers during this conversation leading to this confession or the subsequent confession at the El Toro restaurant also involving Fuller.

[57] Then J.’s judgment is not binding on me. I must make my own analysis. His judgment is, however, useful. As Moldaver J. pointed out, the Hart analysis resembled a threshold reliability analysis. Then J. reviewed the evidence in detail, observed Schindermann testify, observed the important police officers testify, and had the benefit of psychiatric evidence regarding Schindermann’s mental state. He found that the statement was sufficiently reliable to be admissible at Schindermann’s trial.

[58] Few cases have considered the impact of Hart where the confession is to be introduced at the trial of a third party. In R. v. Campeau, 2015 ABCA 210, the Alberta Court of Appeal held that the Khelawon necessity and reliability analysis applies to a confession from a third party. The Hart criteria, while not irrelevant, do not govern.

[59] In R. v. Larue, 2018 YKCA 9 the Yukon Territory Court of Appeal found that the Hart criteria do not determine admissibility but the fact of a “Mr. Big” operation bears on the substantive reliability analysis: para. 117.

[60] In contrast, in R. v. Tingle, 2015 SKQB 184 at paras. 96-110, Justice Danyliuk ruled that the Hart criteria applied to the admissibility of a third party’s statement. Justice Danyliuk ruled that if the statement met the Hart criteria, then it could be considered for admissibility under the principled exception.

[61] With great respect, I prefer the approach of the appellate courts in Larue and Campeau. As the Court in Campeau stated, the essential question here was whether it was unfair to introduce Schindermann’s confession against Burkhard. As the Court further stated at para. 16:

In addressing this point, it is important to bear in mind that the appellant had no right to expect that a criminal associate might not implicate him to the police, knowingly or unknowingly: see eg R v. Duarte, 1990 CanLII 150 (SCC), [1990] 1 SCR 30, 65 DLR (4th) 240. No policy of the law of evidence of which we are aware would support honour and confidence amongst criminals.

[62] The Court went on to say:

There is no basis for some form of automatic carry-over of the policy concerns as to conscription of persons against themselves by despicable trickery and manipulation to a situation where the same person incidentally implicates a third party. We do not have a situation here where the conduct of the police was so abusive of Worme that nothing he said about anyone else could possibly be thought to have any reliability as evidence.

[63] In other words, concerns about self-incrimination that exist in the first-person Hart situation simply do not apply to the admissibility of the statement of a third-party. There may be other situations where the statement of a third party in a Mr. Big operation would operate unfairly against an accused person. This trial is not one of them.

[64] I turn now to the specific questions that I was required to answer in order to determine the threshold reliability of Schindermann’s confession.

(a) Can the specific hearsay dangers presented by Schindermann’s confession be overcome through adequate substitutes for testing truth and accuracy?

[65] Mr. Rosen, Burkhard’s counsel, argued that Frauts and Schindermann concocted their confession to the undercover officers. They did so in order to minimize their involvement in the murder. They met before Frauts introduced Schindermann to Sophie and Stew. They had opportunity and motive to collude. That constituted a specific hearsay danger. That danger could not be overcome by adequate substitutes for testing truth and accuracy.

[66] Respectfully, I must disagree. To begin, I do not see any reason why Frauts and Schindermann would have minimized their role to the undercover officers and maximized Burkhard’s. They had no inkling that Sophie and Stew were police officers. As far as they knew, Sophie and Stew had access to the supposed video. Moreover, it was clearly of no moment to either Sophie or Stew that Schindermann had used violence. As Stew put it:

UC H: Sometimes it happens and this is not the first, it’s not the fifth, it’s not the tenth time it’s happened to us. It fucking happens so I know how to fix it. I’ve had this in the past.

[67] That said, there are, still, clearly two other very important hearsay dangers.

[68] The most important hearsay danger presented by Schindermann is the fact that he is a criminal and a drug dealer. He is a long-time user of legal and illegal drugs. I told the jury the following about Schindermann:

Mr. Schindermann has used illegal drugs, including cocaine, marijuana, acid, mushrooms, ecstasy, ketamine, and opiates (including morphine, oxycontin, and percosets). In December 2014 he was a heavy user of percosets and marijuana. He also sold marijuana and cocaine. He has been diagnosed with post-traumatic stress disorder (PTSD), bipolar type 2 disorder, panic disorder, and attention deficit hyperactivity disorder (ADHD). He has been taking prescription medication for these disorders.

[69] I also gave the jury a warning about his (and Frauts’) evidence in accordance with R. v. Vetrovec, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811:

Members of the jury, I must tell you that testimony from witnesses like Kyle Schindermann and Phillip Frauts must be approached with the greatest care and caution. These men are criminals and liars. Common human experience tells us that a person who is prepared to organize a violent robbery and carry it out is unlikely to be trustworthy or credible. It would be dangerous to base a conviction solely on the unconfirmed evidence of Kyle Schindermann and/or Phillip Frauts. You should consider whether their testimony is confirmed by other evidence in deciding whether the Crown has proved Lance Burkhard’s guilt beyond a reasonable doubt.

[70] Obviously the evidence that the jury heard that prompted the Vetrovec warning came, in large part, after I made my ruling. That said, the hearsay dangers arising from Schindermann’s life as a petty criminal and admitted participant in the home invasion were obvious prior to his testimony.

[71] A Vetrovec warning, of course, is not sufficient to overcome the hearsay dangers R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at para. 29. I simply use the warning I gave the jury as an illustration of the danger in this particular case.

[72] The second hearsay danger is the fact that Schindermann confessed in the context of a Mr. Big operation. Moldaver J. described those dangers in Hart, at para. 68:

First, because of the nature of Mr. Big operations, concerns arise as to the reliability of the confessions they produce. The purpose of these operations is to induce confessions, and they are carefully calibrated to achieve that end. Over a period of weeks or months, suspects are made to believe that the fictitious criminal organization for which they work can provide them with financial security, social acceptance, and friendship. Suspects also come to learn that violence is a necessary part of the organization’s business model, and that a past history of violence is a boast-worthy accomplishment. And during the final meeting with Mr. Big — which involves a skillful interrogation conducted by an experienced police officer — suspects learn that confessing to the crime under investigation provides a consequence-free ticket into the organization and all of the rewards it provides.

[73] Could these hearsay dangers be overcome through substitutes for testing truth and accuracy? In my view, they could. Substitutes for the traditional safeguards include videotaping the statement; the oath; and a warning about the consequences of lying: Bradshaw, at para. 28. Cross-examination, of course, is another important substitute.

[74] It is true that there was no oath; that there was no specific warning about the consequences of not telling the truth; and that the statement was only audiotaped. In my view, nowever, there were four substitutes for testing truth and accuracy. These four substitutes were sufficient for overcoming the hearsay dangers: defence counsel’s ability to cross-examine Schindermann; Schindermann’s self-interest in telling the truth under these circumstances; the fact that the confession was audio-taped; and Schindermann’s ignorance of the meaning of constructive homicide.

[75] Turning first to cross-examination: the courts have consistently held that the ability to cross-examine the declarant is the most important way to test for truth and accuracy: Youvarajah, at para. 35; Khelawon, at paras. 48, 76, and 88; R. v. F.J.U., 1995 CanLII 74 (SCC), [1995] 3 S.C.R. 764, at paras. 37-39; Bradshaw, at para. 28. Schindermann testified at his Hart application. He testified at Burkhard’s preliminary inquiry where Burkhard’s counsel was able to cross-examine him. He was available for cross-examination in this trial. Given the number of times he has gone on the record, cross-examination of Schindermann “goes a long way towards satisfying the requirement for adequate substitutes for testing the evidence”: Youvarajah, at para. 35, quoting Charron J. in R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517.

[76] The second substitute for testing truth and accuracy were the circumstances under which the confession was made. Schindermann perceived it to be in his self-interest to tell the truth to the undercover officers. Schindermann believed that the Russian lady had an accurate video of the murder. He had an incentive to tell the truth so that Sophie and Stew could obtain or destroy the parts of the video that implicated him.

[77] The circumstances of the confession illustrate why Schindermann perceived it to be in his self-interest to tell the truth. Briefly, the undercover officers befriended Frauts in October 2015. They wanted Frauts to become involved with a semi-criminal venture involving a gym, steroids, cocaine, and escorts. In January 2016 Cayouette, Frauts’s girlfriend, told one of the undercover officers that Frauts had set up Mr. Ghalban’s murder. “Weez”, she said, carried out the murder. Weez was Schindermann’s street name. Frauts himself gave the undercover officers information about Mr. Ghalban’s murder at other meetings but did not immediately incriminate himself. That was the point at which the undercover officers introduced the Russian lady. There were several meetings and telephone calls between Frauts and the Russian lady. The Russian lady threatened to go to the police unless she was paid $25,000.00. Sophie and Stew, the undercover officers, told Frauts they could help him deal with the Russian lady. Frauts persuaded Schindermann to meet with them. Schindermann had to be part of the solution if Sophie and Stew were to help.

[78] Frauts had told Schindermann that the Russian lady had a video of the murder. The undercover officers confirmed that they had access to electronics experts. The experts were able to hack into the Russian lady’s email account. They were able to confirm that the Russian lady indeed had video and audio from the apartment. As I have already noted, the police officers showed him “screen captures”. The screen captures demonstrated three things to Schindermann: first, that the Russian lady had video implicating him in the murder; second, that Sophie and Stew could deal with it; and third, that Schindermann needed to tell the truth to Sophie and Stew so that they could deal with it. That was because the undercover officers needed to know what evidence to expunge:

UC H: Okay, show them the video.

SCHINDERMANN: What’s this video?

UC H: This is a video um… so, we got into her computer ‘cause I thought she was bullshitting about this video of you guys in the apartment. And uh, she has it; I saw the file. Now the problem is we can’t turn it on because it’s too big for us to take and I’m not an electronics guy but we can look at it on the screen, on her screen but we can’t play it. So we did a… uh, what’s called a screen capture to see where the cameras are. We counted uh, how many babe, there were like, twelve? Twelve different cameras?

UC P: Yeah.

UC H: So this is four. I didn’t wanna take anymore because we can get them, but this is just to see if she really did have them. So I need you to look at this and tell me if this is really his apartment, all right? If it is, then she’s got it and she’s got it clean and it’s fucking really good video; really good. (Coughs)

SCHINDERMANN: Wow.

UC H: You all right? Listen, this is just a snap shot, it’s just one picture of the actual uh, cameras…

FRAUTS: Video of…

UC H: That they used, right? It’s not the video, so we’re not gonna see you (unintelligible).

UC P: They’re… they’re just four different angles.

UC H: There’s twelve cameras, at least, that we found.

UC P: Yeah, but these are the ones that um, we got right now. Um, but don’t let it scare you, okay? Just ‘cause…

UC H: The good news is before…

UC P: We could…

UC H: …before you look at that. I checked the company… (Coughs) …there’s nothing on the database so it’s going directly to her computer. Her computer has an encryption on it which means it cannot be copied, so all we need is her fucking computer ‘cause she can’t copy it. She can’t change it, I know that one hundred percent. But she can sell her computer to somebody or she can give her computer to the police. But she can’t copy it because of the encryption on it, won’t let it copy. So that’s the great fucking news, all right? (Unintelligible conversation)

UC H: So that is December fourth, right?

UC P: Yeah, I think. I… I have to double check.

UC H: Somewhere around there; December third, fourth, fifth,

something like that.

UC P: Those are four different (Unintelligible).

SCHINDERMANN: Yeah, that’s it.

UC H: So tell us, talk to me is that it for real, for sure?

SCHINDERMANN: Yeah, that’s it.

UC H: Which one? What’s what?

SCHINDERMANN: I remember this one, this stuff. I… I didn’t see this stuff.

UC H: Well that’s… that looks like a bedroom. Were you in the bedroom?

SCHINDERMANN: No.

UC P: Yeah, this looks like his bedroom.

SCHINDERMANN: I was out here to the right or to the left. I guess… that’s where I stayed the whole time.

UC H: (Laughs) She’s got twelve overlapping cameras.

SCHINDERMANN: Yeah, that’s his… that’s his place.

UC H: That’s his place, okay. So… so she’s… we gotta pay her. We gotta pay her, right? ‘Cause she’s got it. What about that?

UC Q: Is that you (Unintelligible)

SCHINDERMANN: I didn’t… I was never in there.

UC P: I think that’s…

UC H: What’s that, his bedroom?

UC P: It looks like his bedroom, yeah.

SCHINDERMANN: Yeah. This is where the bathroom was.

UC Q: Yeah.

UC H: And she’s got audio too. So we know this for sure ‘cause the size of the videos are so big that we can’t even… we can’t even copy them they’re so big. That’s… that’s high resolution, high quality video and she’s got it for… you said December first? Well she’s up week, two, three weeks before that; right all through. Even… She’s gonna have videos of the cops in there. But the cops didn’t get it, I guess, because she was streaming wherever the fuck she’s streaming.

FRAUTS: Mm hmm.

UC P: Yeah, they didn’t even know that…

UC H: They didn’t even know the cameras were in there, right? They… So we checked the make of the cameras with that system and the guys are telling me, the technician’s telling me that they’re tiny little cameras. They’re like… they could… they’re like tiny little…

UC P: Pin hole.

UC H: …pin hole cameras that can go anywhere, you’d miss them. So, we needed to show you that ‘cause if… if that wasn’t his place we’re gonna call bullshit.

FRAUTS: Mm hmm.

UC H: But you’re telling me it is.

SCHINDERMANN: It’s his place.

UC H: Then we gotta deal with it…

[79] The truthfulness or otherwise of a statement is often analyzed in relation to substantive reliability – whether is the statement itself “inherently truthful”: Larue, at para. 52. In this case I think that Schindermann’s confession is more properly analyzed in terms of procedural reliability. The police in this case used what they called a “truth verification strategy”. This was a strategy designed to avoid the major danger associated with a Mr. Big operation: that a target would be tempted to exaggerate or make up previous criminal activity. The target does this in order to ingratiate him or herself with Mr. Big. That is a key reason identified in Hart for making such statements presumptively inadmissible (it is also key that participation in a criminal organization is, on its face, inadmissible disreputable conduct evidence). Here, however, the incentive (for Schindermann, if not for Frauts) was not to join the criminal organization. Rather, Schindermann was induced to confess because he was concerned that the Russian lady had a video of him participating in the death of Wasfi Ghalban. He was responding to a perceived threat of exposure. The inducement was not a future reward. The inducement was a promise to destroy incriminating evidence. In that sense, the danger of a false confession through boasting was reduced considerably.

[80] In my view, that was the equivalent of a warning about the consequences of not telling the truth. This warning was probably more powerful than a warning that if he lied he might be prosecuted for perjury. A man like Schindermann was unlikely to take such a warning particularly seriously. Knowing that failure to tell the truth might expose him to a murder charge was likely a much stronger incentive.

[81] There are similarities between this case and Campeau, the case from the Alberta Court of Appeal that I have mentioned earlier in these reasons. In Campeau, the trial judge admitted a videotaped conversation between Sheldon Worme and an undercover police officer. Worme was a participant in a murder and robbery. As I have already noted, the Court confirmed that Mr. Big statements are not to be considered on the basis of the Hart factors when they concern a third party. Rather, the Khelawon analysis of necessity and reliability applies. The Court found that there was no policy reason to exclude a statement from a third party unless the police conduct was so abusive of Worme that nothing he said could be relied on. The Court also noted that the police used a “truth verification strategy” similar to the one used by the police in this case. As the majority of the Court put it at para. 21:

The police used a truth verification strategy (we can help cover this up if we know what happened) and not a strategy which might induce false bragging (are you tough enough for our organization).

[82] The third substitute for testing truth and accuracy is the fact that the statement was recorded. It is true that it was not videotaped. It is certainly true that a videotaped statement allows the jury to examine the demeanour of the witness.

[83] Seeing a witness, however, is not the only way to assess demeanour. In R. v. S.(N.), 2012 SCC 72, the Supreme Court dealt with the issue. A complainant in a sexual assault case wore a niqab. The niqab covered her face. The defence counsel asked the complainant to remove the niqab so that her credibility could be assessed. The complainant refused. She said she had a religious objection. The preliminary inquiry judge ordered her to remove it. The complainant brought a certiorari application. The Superior Court and the Court of Appeal both ordered the preliminary inquiry judge to conduct a fuller inquiry. Obviously important values clashed in the case. The clash was between religious observance and the principle that an accused ought to be able to confront his or her accuser. That confrontation is conducted in open court through the powerful mechanism of cross-examination. It gives a trier of fact the ability to judge credibility: S.(N.) at para. 24. Ultimately, McLachlan C.J., for a plurality of the court, found that whether trial fairness is impacted depends on the case. If wearing a niqab posed no threat to trial fairness, than a witness may wear it for sincere religious reasons: S.(N.) at para. 29.

[84] In dissent, Abella J. noted a very long line of cases that have downplayed the importance of demeanour evidence: S.(N.) at para. 99. Abella J. referenced several appellate decisions urging caution in the use of demeanour evidence. Specifically, at para. 100 she quoted the Alberta Court of Appeal:

The Court of Appeal for Alberta similarly urged caution in relying on demeanour in R. v. Pelletier (1995), 1995 ABCA 128, 165 A.R. 138 (Alta. C.A.):

I question whether the respect given to our findings of fact based on the demeanour of the witnesses is always deserved. I doubt my own ability, and sometimes that of other judges, to discern from a witness’s demeanour, or the tone of his voice, whether he is telling the truth. He speaks hesitantly. Is it the mark of a cautious man, whose statements are for that reason to be respected, or is he taking time to fabricate? Is the emphatic witness putting on an act to deceive me, or is he speaking from the fullness of his heart, knowing that he is right? Is he likely to be more truthful if he looks me straight in the face than if he casts his eyes on the ground, perhaps from shyness or a natural timidity? For my part I rely on these considerations as little as I can help.

...I judge a witness to be unreliable if his evidence is, in any serious respect, inconsistent with these undisputed or indisputable facts, or of course if he contradicts himself on important points. I rely as little as possible on such deceptive matters as his demeanour. [para. 18]

(Citing a 1973 paper by Justice MacKenna and approvingly quoted in P. Devlin, The Judge 1979, at p. 63.)

[85] Juries are routinely told not to make too much of demeanour. For example, both Justice Watt’s model jury instructions and the Canadian Judicial Council model jury instructions contain the identical caution:

What was the witness’s manner when s/he testified? How did s/he appear to you? Do not jump to conclusions, however, based entirely on how a witness has testified. Looks can be deceiving. Giving evidence in a trial is not a common experience for many witnesses. People react and appear differently. Witnesses come from different backgrounds. They have different abilities, values and life experiences. There are simply too many variables to make the manner in which a witness testifies the only or most important factor in your decision.

[86] Here, the police captured the entire confession on audiotape. They did not video it, for what seem to me to be very practical and obvious reasons. That was a limitation. That said, the police officers were available to be examined and cross-examined on Schindermann’s mental state and alcohol consumption – as was Schindermann himself. While the jury could not assess Schindermann’s facial expressions during the confession, they were certainly able to understand the conditions, hear the modulations of Schindermann’s voice, and understand how he interacted with the undercover officers and Frauts. While it is obviously always preferable to have a video that the jury can assess, it is not the only way to assess demeanour – as the cases have recognized and the model jury instructions urge.

[87] For example, we routinely ask juries to assess the truth or falsity of statements that people make where the police intercept private communications. Videotaping in those circumstances is impossible. Interpretation of the meaning of the words on the intercepts is often an important aspect of the case. Indeed, sometimes the intercepts are in a foreign language and must be translated. The weight to be given to the intercepts is up to the jury. Nothing in the case law suggests that video is mandatory for the admissibility of a statement, especially if there are other ways for the jury to assess demeanour.

[88] In my respectful view, therefore, in the circumstances of this case audio-taping the confession is an adequate substitute for testing truth and accuracy.

[89] The fourth substitute for testing truth and accuracy, ironically, was Schindermann’s ignorance. At the time of the statement he undoubtedly had no idea of the concept of constructive murder. At the time of this trial he undoubtedly did. The concept of constructive murder is critical. The forcible confinement aspect of the robbery changed the potential liability from manslaughter or second degree murder to first degree murder. It is the difference between a minimum sentence of 25 years before parole eligibility, and a considerably lower sentence for manslaughter – or even lower parole eligibility for second degree murder. In his confession Schindermann made no attempt to minimize his involvement in the confinement aspect of the crime. He readily admitted putting his knee on Mr. Ghalban and controlling him, and putting the zip tie on. Later, when he had been exposed to his potential jeopardy (and understood what he was facing) he clearly minimized. He was cross-examined on the point by defence counsel. Whatever one might make of Schindermann’s credibility, he clearly had no understanding that it was better to minimize his involvement in the confinement aspect when he described the home invasion to the undercover police officers.

(b) Are there specific guarantees of reliability or trustworthiness associated with Schindermann’s confession?

[90] Although this question is moot, given my finding on procedural reliability, I will answer this question for the sake of completeness.

[91] Crown counsel argued that there was evidence that corroborated material aspects of Schindermann’s statement. That evidence was purely factual. It was based on the forensics. That evidence, Crown counsel contended, constituted enough of a specific guarantee of reliability and trustworthiness to meet substantive reliability.

[92] I respectfully disagree with the Crown. I certainly agree that the forensic evidence corroborated aspects of Schindermann’s statement to the undercover officers. I disagree that the forensic evidence corroborated the material aspects that the Crown sought to rely on to demonstrate the identity of the stabber. The corroboration was not sufficient. Moreover, the critical aspects of the statement – the actual roles played by Schindermann and Burkhard in the killing – were simply not “inherently truthful”. Much of Schindermann’s confession was inherently truthful. Those key points were not.

[93] In a pre-trial motion that was not argued, Crown counsel identified four material aspects of Schindermann’s statement that it sought to lead for the truth of its contents. The Crown only pursued three at trial: the sequence of events; evidence of participation in the murder; and the identity of the stabber.

[94] There is no doubt that evidence that corroborates a statement may be used to determine substantive reliability. As the Supreme Court summarized at para. 57 of Bradshaw:

In sum, to determine whether corroborative evidence is of assistance in the substantive reliability inquiry, a trial judge should

1. identify the material aspects of the hearsay statement that are tendered for their truth;

2. identify the specific hearsay dangers raised by those aspects of the statement in the particular circumstances of the case;

3. based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement; and

4. determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternative explanations such that the only remaining likely explanation for the statement is the declarant's truthfulness about, or the accuracy of, the material aspects of the statement.

[95] The Crown has suggested that there are several pieces of evidence that are capable of corroborating Schindermann’s confession as a whole. The corroborative evidence comes from the forensics and other witnesses. The real question, of course, is whether the evidence is capable of corroborating the material aspects of Schindermann’s confession that the Crown seeks to rely on.

[96] The key pieces of evidence that the Crown says corroborate Schindermann’s confession are set out in this chart:

Schindermann’s Confession

Corroborative Evidence

Fuller followed Mr. Ghalban home and warned Schindermann and Burkhard.

Fuller confirmed this evidence in his statement.

Mr. Ghalban fled to the balcony where there was fighting.

Forensics (Constable Albrecht, the blood spatter expert, and photographs) showed that Mr. Ghalban’s blood was on the balcony.

Mr. Ghalban was screaming for help from the balcony.

Fuller confirmed this evidence in his statement.

Mr. Ghalban was brought back inside the apartment from the balcony.

Forensics (Constable Albrecht and photographs) showed that Mr. Ghalban’s blood was found in the doorway and dining room near the balcony.

Mr. Ghalban was held down in the dining room.

Forensics (Constable Albrecht and photographs) showed blood drip patterns in the dining room area.

Mr. Ghalban was held down near the TV.

Forensics (Constable Albrecht and photographs and blood stains).

Burkhard brought pre-made zip ties to restrain Mr. Ghalban.

Mr. Ghalban had a zip tie on his right wrist.

Burkhard ransacked the apartment looking for money.

The apartment was ransacked.

Burkhard ransacked the kitchen, including looking in cereal boxes, looking for money.

Forensics (Constable Johnson, the footwear impression expert) indicated that Burkhard’s bloody shoe prints were in the kitchen

Both men were wearing knapsacks that were empty when they went in, and full of cash when they left.

The surveillance video confirms this evidence.

[97] I agree with the Crown that all of the above evidence corroborates aspects of Schindermann’s evidence. None identifies the stabber. All of that evidence is equally consistent with both the defence and the Crown theories.

[98] Schindermann also stated that Burkhard stabbed Mr. Ghlaban in the neck. This critical evidence was confirmed by Dr. Cunningham in part. Dr. Cunningham confirmed that Mr. Ghalban was stabbed in the neck. Of course, Dr. Cunningham had no evidence as to the identity of the stabber.

[99] The undercover officers asked Schindermann to draw a diagram of Mr. Ghalban’s apartment. The diagram identified where Mr. Ghalban’s body was found. Schindermann also identified quite specifically where Mr. Ghalban’s body was located. The diagram was remarkably accurate. It indicated the main rooms. It also indicated where on Mr. Ghalban’s body the zip tie was found.

[100] I turn next to the application of the Bradshaw analysis.

[101] The specific hearsay dangers are those I have already identified: Schindermann’s status as a drug-dealing criminal; and the fact that the statement was made in the course of a Mr. Big operation.

[102] I turn to alternative explanations for the statement. The main point of the statement could, of course, be true – the description of the sequence of events; Schindermann’s surprise that Burkhard stabbed Mr. Ghalban (indicating lack of foresight and thus a lower level of liability); and his identification of Burkhard as the stabber. The alternative is that that Schindermann was an aider or party to the murder and thus liable for first degree murder; or that Schindermann was the stabber and also liable for first degree murder. When I examine the corroborative evidence, however, it does not rule out these alternatives. I am unable to say that the only likely remaining explanation is Schindermann’s truthfulness.

[103] It is clear that the location of the bloody footprints does not directly indicate the identity of the stabber. Neither does the blood pattern on the balcony. In other words, the bloody footprints and other forensics do not directly implicate either Burkhard or Schindermann in the stabbing. That is the same for Schindermann’s diagram and the location of the zip tie on Mr. Ghalban’s right hand. It is also the same for the ransacking of the apartment. The corroborative evidence is equally consistent with the Crown theory and the alternative explanation.

[104] The one piece of forensic evidence that does corroborate Schindermann’s confession on a material point is that Burkhard kicked Mr. Ghalban in the head. There is a pre-mortem wound to Mr. Ghalban’s head. There are also bloody footprints associated with Burkhard’s shoes near where Mr. Ghalban’s head finally came to rest. The bloodstain on the wall could have been from a kick to the head, but Constable Albrecht testified that that it could have been consistent with other events. That said, I am prepared to accept that the kicking was sufficiently corroborated to meet substantive reliability. The problem, however, was that the jury could have convicted Burkhard of first degree murder based on other evidence. A kick to the head was only one route, and a route that the jury could have disagreed about. Although I recognize that I could have admitted the statement on that basis, in my view it was appropriate to exercise my discretion against it.

[105] As a result, the corroborative evidence is not sufficient to provide specific guarantees of reliability or trustworthiness associated with Schindermann’s confession to the undercover officers. The material aspects of the confession are not inherently truthful. I am, therefore, not persuaded that the statement is substantively reliable. It does not reach threshold reliability on that basis.

(c) Can procedural and substantive reliability work in tandem to reach threshold reliability?

[106] Since I have found that Schindermann’s statement is admissible on the basis of procedural reliability it is not necessary for me to consider this question.

DISPOSITION

[107] As I indicated earlier, the application was allowed. The Crown was permitted to introduce Schindermann’s confession for the truth of its contents.

R.F. Goldstein J.

Released: February 25, 2019

COURT FILE NO.: CR-17-70000591-0000

DATE: 20190225

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

LANCE BURKHARD

RULING ON CROWN KGB APPLICATION

R.F. Goldstein J.