COURT FILE NO.: CR-19-90000591-0000
DATE: 20191113
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
LANCE ROWE
Defendant
Diana Lumba, for the Crown
W. Calvin Rosemond, for the Defendant
HEARD: October 11^th^, 2019
mr. Justice peter bawden
[1] Brittany Simpson was called as a witness by the Crown to testify regarding her observations of a drug transaction which allegedly occurred between Mr. Rowe and an unknown male. The Crown anticipated that Ms. Simpson’s testimony would conform to a videotaped statement which she had made to police on the date of the incident.
[2] Ms. Simpson’s testimony was markedly inconsistent with her earlier statement. The Crown applied to cross-examine her concerning the statement under section 9(2) of the Canada Evidence Act. The application was granted. Ms. Simpson did not adopt her earlier statement in the course of that cross-examination and continued to maintain that the statement to police was false. The Crown now seeks to admit the statement for the truth of its contents under the principled exception to the hearsay rule.
[3] The relevant facts are set out in the section 9(2) ruling.
[4] The Crown bears the onus of demonstrating that the hearsay evidence is necessary and reliable. Ms. Lumba argues that the evidence is necessary because the witness has refused to provide an honest account of her observations and has thereby deprived the Crown of evidence which it requires in order to prove the allegations against Mr. Rowe. Ms. Lumba further submits that the circumstances under which the statement was taken provide sufficient guarantees of its trustworthiness for it to be admitted for the truth of its contents.
[5] I will assume for present purposes that necessity is made out although I have reservations on the point. It is true that the Crown has been deprived of the fulsome description of a drug transaction which appears in Ms. Simpson’s statement to police. There is, however, reliable evidence from other sources which would permit the jury to infer that a drug transaction took place without considering Ms. Simpson’s statement for the truth of its contents. I will discuss this later in my comments regarding the exercise of my residual discretion to exclude relevant evidence. I put the issue of necessity aside because, in my view, the Crown’s principle hurdle in this application is the reliability of the statement.
[6] Ms. Simpson was arrested on the charge of possession of cocaine for the purpose of trafficking at 1:03 pm. She was taken to a police station where she was held in custody until her statement began at 4:45 pm. She was subjected to a strip search during the time that she was held at the station.
[7] At the outset of the video statement, DC Simas said to Ms. Simpson "we had a brief talk before we came in here." The officer does not recount what was said before entering the interview room and did not ask Ms. Simpson to state her recollection of the conversation.
[8] DC Simas then said to Ms. Simpson "back at the scene, I told you this interview was gonna be recorded" The officer then confirmed that by saying "at the scene", he meant at the time of her arrest. There was no evidence on the voir dire or at the trial proper regarding a conversation having taken place at the time of Ms. Simpson’s arrest suggesting that she would provide a video statement.
[9] Detective Johnston was the officer in charge of the investigation. He testified that it was his decision to release Ms. Simpson without charges and that decision was not made until after the debriefing meeting which began at approximately 4:00 PM. It is difficult to understand what conversation D.C. Simas could have had with Ms. Simpson at the time of her arrest regarding a videotaped statement when she had not been provided with an opportunity to consult with counsel and there was no basis to anticipate that she would be released. The fact that D.C. Simas referred to this conversation on the video but did not provide any details as to what was said gives rise to significant concerns regarding the circumstances which led Ms. Simpson to make the statement.
[10] DC Simas next says on the video that Ms. Simpson had been advised that she could call a lawyer and had said that she did not have one. Ms. Simpson acknowledged that this was true. The officer did not advise her of the availability of duty counsel or suggest that the interview could be postponed until she had had a chance to speak to a lawyer.
[11] The police do not have to advise a witness of the right to counsel prior to taking a statement. It must be recalled, however, that Ms. Simpson was not an ordinary witness. She had been arrested for the same offences as Mr. Rowe only three hours earlier and had been held in custody without having received any legal advice. If she had spoken to counsel or had at least been advised of the availability of duty counsel prior to giving the statement, that would be a circumstance which could contribute to the reliability of her statement. The fact that the interviewing officer did not even mention the availability of duty counsel is a further factor which detracts from the reliability of this statement.
[12] Ms. Simpson was never advised of any reason for taking the statement. Neither of the interviewing officers told her why she was being interviewed, what use might be made of her statement or alerted her to the possibility that she might be called as a witness regarding whatever she said in the statement. She was never asked if she consented to giving the statement and there was no suggestion that she had an option to refuse.
[13] DC Simas reminded Ms. Simpson at the outset of the interview that she had been arrested earlier in the day for possession of cocaine for the purpose of trafficking and then said, "at this point you're being released without any charges". Although the officer told her that she was “being” released, he did not say that she was free to leave. Given that she had been held for over three hours and was not told on video that she was free to leave, Ms. Simpson might reasonably have concluded that providing a statement was relevant to her release. This belief would quite naturally flow from the officer’s statement that she was being released without charges “at this time”. There was no assurance that she was permanently out of jeopardy.
[14] The interview proceeded without any reference to the necessity of telling the truth. Ms. Simpson was not sworn. She was not provided with any form of caution regarding the potential consequences of being untruthful. There was no attempt to adopt any form of solemnity which would bring home to Ms. Simpson the necessity of providing a truthful statement.
[15] These circumstances cause me to have significant concerns regarding the reliability of the statement. Ms. Simpson had been arrested only a short time before on the very same charges as Mr. Rowe. She had been held in custody for over three hours without speaking to a lawyer. She had young children who had to be picked up from daycare and who expected to see their mother that night. She provided the statement without knowing the reasons for giving the statement or the fact that she might have to testify regarding its contents. These are circumstances which would cause any reasonable observer to be doubtful about the reliability of the statement.
[16] As I noted in the section 9(2) ruling, there are aspects of the statement which are corroborated by other sources. Ms. Lumba argues that the corroboration is so strong that it outweighs any procedural deficiencies and the court should find that the statement is inherently trustworthy. With great respect, I cannot accede to that argument.
[17] Procedural and substantive reliability work in tandem. The only procedural step which was taken to establish an inherent trustworthiness to the statement was to videotape it. The Crown is not able to play the video to the jury because of inadmissible utterances which have not been vetted from the digital file. Thus, if the statement were to be admitted, the jury would only hear the Crown read a transcript of the statement and would be deprived of its one and only procedural safeguard.
[18] Ms. Simpson’s statement is corroborated by police observations which enhance its substantive reliability. Ms. Simpson said that she saw Mr. Rowe pass a white powdery substance to the unknown male in the backseat of the car and receive an amount of cash in return. Mr. Rowe stowed the bills in a compartment in the front console of the car and put the bag of white powder in the back seat of the car. When police searched the car, they found $300 in bills in a console compartment and a bag of powder cocaine under the passenger’s seat. Detective Johnson also testified that he observed a hand to hand exchange between Mr. Rowe and the unknown male in the back of the car.
[19] Although this is compelling corroboration of Ms. Simpson’s statement, I cannot find that it meets the standard set out in Bradshaw. The standard for substantive reliability is high. Given the circumstances of this case, I find that it is reasonably possible that Ms. Simpson fabricated her statement either to ensure her own release or to cover for her involvement in the drug transaction. I cannot say that the corroborative evidence is so strong that the only likely explanation for the hearsay statement is that Ms. Simpson was telling the truth.
[20] The substantive reliability of the statement is insufficient to outweigh the complete lack of procedural guarantees of reliability. I am not satisfied on a balance of probabilities that the statement meets the standard of threshold reliability.
[21] If I am wrong in that conclusion, I would nevertheless exercise my residual discretion to exclude the statement in order to maintain a fair trial.
[22] As I indicated earlier, the Crown is not able to play the video to the jury. This would deprive the jury of any opportunity to observe Ms. Simpson’s demeanour at the time that she made the statement.
[23] Ms. Lumba observes that she has not had time to prepare an edited video and this compromises her legal position. While this may be true, the Crown did not meet with Ms. Simpson prior to trial and had seemingly not anticipated that she would deviate from the statement which she made to police. That possibility should have been anticipated.
[24] Ms. Simpson is not the only source of evidence that a transaction took place in the Honda Civic. The very fact that the unknown male parked close to the civic, entered the backseat for a short time and then returned to his own car with his hand in his pocket is indicative of a drug transaction. DC Johnston testified that he observed the unknown male in the back passing something to the driver of the car. Police found $300 in $20 bills in the ashtray of the Civic and another $420 on Mr. Lowe's person. An expert witness has testified that these are all indicia of drug trafficking.
[25] The Crown case might be stronger if the hearsay statement was admitted for its truth, but the Crown hardly needs the statement to make out its case.
[26] If the evidence is admitted under the principled exception, it will necessitate a charge to the jury on two different uses of the same statement. While it may be within the capabilities of a modern jury to apply such instructions, it would introduce an element of reasoning prejudice which is an unnecessary distraction in what should be a very simple case.
[27] I am satisfied that the Crown will be able to put its position before the jury without the hearsay statement. I find that the prejudicial effect of admitting the statement would exceed the probative value and thus would exclude the statement for its truth even if it does meet threshold reliability.
Justice Peter Bawden
Released: November 13^th^, 2019
COURT FILE NO.: CR-19-90000591-0000
DATE: 20191113
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
LANCE ROWE
Defendant
REASONS FOR JUDGMENT
BAWDEN J.
Released: November 13^th^, 2019