COURT FILE NO.: 17-RD19661 DATE: 2021/02/12 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Applicant – and – E.A. Respondent
Counsel: Drew Young, for the Applicant Ariya Sheivari, for the Respondent
HEARD: February 1, 2021
Ruling on Application for Voluntariness voir dire
ryan bell j.
Background
[1] E.A. is charged with offences against his ex-wife including sexual assault, assault, uttering threats, and criminal harassment. He is also charged with assault and uttering threats against his son, firearms offences, and breach of recognizance. The trial commenced on January 25, 2021. After the close of the Crown’s case, E.A. elected to testify in his own defence.
[2] On January 29, part-way through the Crown’s cross-examination of E.A., the Crown requested a voir dire to determine the voluntariness of E.A.’s video-recorded statement to the police. The Crown’s intended purpose was to cross-examine E.A. on alleged inconsistencies and “variances in tone and emphasis” in relation to collateral facts. E.A.’s statement to police was described by the Crown as “entirely exculpatory.”
[3] The Crown stated that it had never intended to seek to cross-examine E.A. on his statement before the alleged inconsistencies and variances arose during E.A.’s cross-examination. At no time did the Crown undertake not to use the statement. At the same time, there was no representation made by the Crown to the defence about the statement’s use or possible use for cross-examination.
[4] The issue is one of timing: when should the Crown seek to prove the voluntariness of an accused’s statement to a person in authority when the Crown’s intention is to use the statement to cross-examine the accused? The defence contended that the admissibility of the statement should have been determined before E.A. elected to forego his right to silence and to give evidence, and argued that to permit a voluntariness voir dire at this stage of the trial would offend E.A.’s right to a fair trial and cause prejudice to his right to make full answer and defence.
[5] After hearing submissions on February 1, I dismissed the Crown’s application and ruled that no use could be made of E.A.’s statement. I gave brief oral reasons for my ruling, indicating that written reasons were to follow. These are my written reasons.
Analysis
[6] Before the accused calls evidence in their own defence, the accused must have knowledge of the case to be met. That is, the Crown is not permitted to split its case against an accused person. The Supreme Court of Canada has described the “case to meet” principle as:
…a fundamental tenet of the criminal justice system, firmly rooted in the common law and an integral part of the principles of fundamental justice...which are protected by s. 7 of the Canadian Charter of Rights and Freedoms. It is part of the broader principle against self-incrimination, which has its roots in the presumption of innocence and the power imbalance between the state and the individual: R. v. Underwood (1998), 1 S.C.R. 77, at para. 6.
[7] Where an accused has given a statement to the police, the Crown may choose to introduce it into evidence as a substantive part of its case in chief; other times, the Crown will hold the statement for use in cross-examination should the accused elect to testify. Given the rule against case-splitting, the Crown’s use of the statement in cross-examination is generally “limited to impeachment by challenging oral testimony with material contradiction in the statement”: R. v. Osborne, [2019] O.J. No. 1345 (S.C.J.), at para. 13, citing R. v. G.A., [2017] O.J. No. 6820 (S.C.J.), at para. 152. A ruling that the statement was given voluntarily is a prerequisite to the admissibility of the statement and the burden to establish voluntariness rests on the Crown. In Osborne, the Crown was successful in its pre-trial motion on the issue of voluntariness. The specific issue before Boswell J. was whether the Crown should be permitted to play the entirety of the accused’s statement to police during cross-examination.
[8] In support of its position, the Crown relies on the line of authority beginning with R. v. Drake, [1970] S.J. No. 164 (Q.B.). In Drake, the court stated, at para. 9:
There is a well-known principle that evidence which is clearly relevant to the issues and within the possession of the Crown should be advanced by the Crown as part of its case, and such evidence cannot properly be admitted after the evidence for the defence by way of rebuttal. In other words, the law regards it as unfair for the Crown to lie in wait and to permit the accused to trap himself. The principle, however, does not apply to evidence which is only marginally, minimally or doubtfully relevant.
[9] The ruling in Drake was made in the context of rebuttal evidence; however, in R. v. King, [1998] O.J. No. 662 (O.C.J. (Gen. Div.)), the issue was whether, after the accused elected to testify, the Crown could seek to cross-examine the accused on an alleged statement to police, assuming the statement could be proved to be voluntary. Ferguson J. applied Drake and granted the Crown’s application. At para. 26, Ferguson J. concluded that since the statement was exculpatory, it was only “marginally, minimally or doubtfully relevant during the Crown’s case” and the rule against splitting the Crown’s case did not prevent the statement’s use in cross-examination. In the recent decision in Osborne, Boswell J., relying on King, stated that Drake “appears to reflect the current state of the law [i]n Ontario”: Osborne, at para. 11.
[10] The same position was argued by the Crown before me: E.A.’s statement to the police was said to be marginally, minimally, or doubtfully relevant to the Crown’s case because of its exculpatory nature.
[11] The Crown also referred me to a decision of the British Columbia Supreme Court in R. v. Gray, [2016] B.C.J. No. 1338 which summarizes the position in that province. Following the accused’s examination in chief, the Crown applied for a voir dire to determine the voluntariness of the accused’s statement to police. The statement was exculpatory but was said to contain inconsistencies regarding the accused’s explanation for how he came to be in possession of goods determined to be stolen. The sole purpose of the intended cross-examination was to test the accused’s credibility. The court in Gray allowed the Crown’s application, relying on Drake and decisions of the British Columbia Court of Appeal including R. v. Brooks (1986), 28 C.C.C. (3d) 441 and R. v. Fischer, 2005 BCCA 265, where the court stated at para. 41:
It is permissible for the Crown to put to an accused in cross-examinations portions of a statement found to be voluntary. Craig J.A. observed in R. v. Pappajohn [citations omitted]:
This Court has recently held in R. v. Rosa, [1978] B.C.J. No. 1045 that a voir dire may be held during the cross-examination of an accused to determine the admissibility of a statement allegedly made by the accused and he may be cross-examined on the statement if it is admitted in evidence.
[12] In Gray, the court concluded that the accused’s statement was not probative to the Crown’s case but instead, only became relevant when the accused testified; in these circumstances, the Crown was not splitting its case and the defence could not be said to be caught by surprise.
[13] The defence relied on a competing line of authority that stands for the proposition that the Crown cannot put an accused in contradiction with a prior statement unless a voluntariness voir dire is held prior to or at the close of the Crown’s case; to do otherwise offends procedural fairness and compromises the integrity of the judicial process: R. v. Zoe, 2009 NWTTC 19, [2009] N.W.T.J. No. 80, at para. 34 (c).
[14] The ruling in R. v. Dakins, [2000] O.J. No. 5338 falls within this second line of authority. The facts in Dakins are similar to those before me. During the course of the accused’s cross-examination, the Crown sought a voir dire to determine the admissibility of a statement given by the accused to the police. The purpose was restricted to cross-examination. The existence and content of the statement were known to the accused. While the Crown in Dakins did advise that the statement would not be tendered in evidence as part of the Crown’s case, the Crown made no representation about the statement’s use for cross-examination. The issue was one of timing. Donnelly J. ruled against a voir dire being conducted. Although he was satisfied that the proposed use of the statement was relevant to a material trial issue – the credibility of competing witnesses – Donnelly J. concluded that “the accused ought not to be put to the election to forego those rights [the privilege against self-incrimination and the constitutional right to silence] on a faulty premise induced by the conduct of the Crown, albeit totally innocently”: Dakins, at para. 1.
[15] In Donnelly J.’s view, imposing an obligation on the Crown to make the tactical decision to request a voluntariness voir dire before the close of the Crown’s case did not set “an unreasonable standard” in the context of a case where the central issue was credibility and where the nature of the case – an allegation and a denial – was known to the Crown by virtue of the exculpatory statement: Dakins, at para. 1. As Donnelly J. put it:
It is a readily foreseeable eventuality that the accused may testify – that if he does testify there may be utility conferred upon the otherwise exculpatory statement. It seems to be a very short step, that if he does testify the statement may be of use.
[16] Donnelly J. distinguished the decision in Drake in part on the basis that it was decided pre- Charter.
[17] In Zoe, the court first reviewed the different “lines of thinking” with respect to the proposed cross-examination of an accused on a prior inconsistent statement when there had been no prior voir dire and the statement was not tendered as part of the Crown’s case, before grounding its decision on the principle of trial fairness. The court refused permission to the Crown to prove the voluntariness of a prior statement given by the accused to the police in circumstances where the Crown had specifically advised the defence on the day of the trial that it did not plan to rely on the statement given by the accused to police authorities as part of the Crown’s case or for the purpose of cross-examination. The court concluded that the change of position by the Crown after the accused made his decision to testify changed the case to meet, caused a prejudice to the accused that could not be remedied, and rendered the trial unfair.
[18] At paras. 23-25 of Zoe, the court reviewed the British Columbia Court of Appeal’s decision in Brooks. In Brooks, the Crown did not attempt to have the accused’s statements introduced as evidence during the Crown’s case. It was only when the accused gave evidence “which in its tone and emphasis was at variance with the statements made by him to [the police]… that the Crown sought to have the evidence admitted: Zoe, at para. 23. The majority of the court were of the view that the statements were only marginally relevant to the Crown’s case but were very relevant to assessing the credibility of the accused and that the trial judge did not err in allowing the Crown to cross-examine the accused on prior statements.
[19] In a partially dissenting opinion, Anderson J.A. wrote that:
The appellant was not given any notice that the Crown intended to use the statements made to Sgt McDermid until after he had gone into the witness box in his own defence. Thus, having concluded that the statements which he had made to Sgt McDermid were not going to be used against him, he went into the witness box. If he had anticipated that he was going to be cross-examined on his statements, he might well have decided not to take the stand in his own defense.
When reviewed in the light of the above circumstances, the unfairness of the procedure adopted by the Crown becomes obvious: Brooks, at para. 81, cited in Zoe, at para. 25.
[20] In R. v. Lizotte (1980), 61 C.C.C. (2d) 423 (Que. C.A.), the Crown had, at an early stage of the proceedings, called for a voir dire to determine the voluntariness of the accused’s statement to the police. The voir dire was allowed and at its conclusion the statement was ruled voluntary; however, the statement was not tendered in evidence as part of the Crown’s case. The Quebec Court of Appeal observed, at para. 20, that it is “surely preferable to hold a voir dire at that stage of the proceedings rather than [to] interrupt the cross-examination of the accused should the statement be needed at that point for purposes of contradiction.”
[21] The defence also referred me to R. v. Kikoak, [1986] N.W.T.J. No. 119. In that case, the Crown sought to have admitted into evidence certain statements made by the accused to the R.C.M.P. in order to permit cross-examination of the accused. The court in Kikoak did not allow the Crown to call a voir dire during the accused’s cross-examination because the statements were not of minimal or doubtful relevance to the issues in the case, and the court was not satisfied that the statements ought not to have been tendered as part of the Crown’s case. The court held that to admit the statements at that stage of the trial would permit the Crown, directly or indirectly, to split its case. The court recognized that authority exists to support the position that in some circumstances, statements made by the accused to persons in authority can be tendered for the purpose of cross-examining the accused in order to attack the accused’s credibility, but cautioned that “those are exceptional cases, and they should be restricted to the special circumstances involved”: Kikoak, at para. 2.
[22] The case to meet principle is a fundamental tenet of the criminal justice system, protected by s. 7 of the Charter of Rights and Freedoms. Every person tried in Canada is entitled to a fair trial: s. 11(d) of the Charter. Because of these two fundamental precepts, I prefer the line of reasoning represented by Dakins and Zoe that is grounded in the notion of trial fairness. In my view, the focus of the inquiry should rest on the potential for prejudice to the accused (as in Dakins), and not on whether the accused could be said to have been taken by surprise by the change in the Crown’s position (the approach in Gray) or the potential for wasted time as a result of “futile” voir dires (a concern raised in Drake, at para. 11).
[23] The Crown attempted to distinguish Zoe from the present facts on the basis that in Zoe, the Crown specifically advised the defence on the day of the trial that the Crown did not plan to rely on the accused’s statement for any purpose. I agree with Donnelly J. in Dakins that to oblige the Crown to make a tactical decision whether to bring a voluntariness voir dire before the close of its case does not set the bar too high; in my view, to circumscribe Zoe as proposed by the Crown is too restrictive. Regardless of the reason, the Crown’s change of position after E.A. made his decision to testify would have changed the case to meet and would have caused prejudice to E.A. that could not be remedied.
[24] I do not suggest that this was a case of the Crown “lying in wait” or “springing a trap” for E.A. However, the defence theory of the case has been well-known to the Crown for some time – because of the exculpatory statement and as a result of pre-trial motions brought by the defence – and credibility is acknowledged to be the core issue. Accordingly, it was readily foreseeable to the Crown that E.A. might testify and that his statement might be of use. It cannot be argued that a potential contradiction between the testimony of E.A. and his prior statement was something that could not have been reasonably anticipated by the Crown. And, where credibility is the central issue in the case, it cannot be said the evidence is only marginally, minimally, or doubtfully relevant.
[25] I find that in the circumstances of this case, to permit the Crown to embark on a voluntariness voir dire to ultimately seek to cross-examine E.A. on his prior statement to the police would be unfair to E.A. because E.A. made a decision to forego his right to remain silent in consideration of the case to meet when the Crown closed its case.
[26] For these reasons, in the exercise of my discretion, I refused permission to the Crown to prove the voluntariness of the prior statement given by E.A. to the police, ordered that there would be no use made of the statement, and dismissed the Crown’s application.
Justice R. Ryan Bell
Released: February 12, 2021
COURT FILE NO.: 17-RD19661 DATE: 2021/02/12 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Applicant – and – E.A. Respondent RULING ON APPLICATION FOR VOLUNTARINESS VOIR DIRE Ryan Bell J.
Released: February 12, 2021