COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:	R. v. TGN,
	2007 BCCA 2

Date: 20070102

 

Dockets: CA034011, CA034023, CA034025

Between:

Regina

Respondent

And

Docket: CA034011

T.G.N.

Docket: CA034023

D.T.A.

Docket: CA034025

M.G.Q.

Appellants

 

(Youth Criminal Justice Act)

Before:	The Honourable Mr. Justice Donald
	The Honourable Mr. Justice Mackenzie
	The Honourable Mr. Justice Low

 

A. S. Roth	Counsel for the Appellant TGN
S. J. Narbonne	Counsel for the Appellant DTA
S. M. Merrick	Counsel for the Appellant MGQ

 

M. Brundrett	Counsel for the Respondent
Place and Date of Hearing:	Vancouver, British Columbia
1 December 2006
Place and Date of Judgment:	Vancouver, British Columbia
2 January 2007

 

Written Reasons by:

The Honourable Mr. Justice Mackenzie

Concurred in by:

The Honourable Mr. Justice Donald The Honourable Mr. Justice Low

 

Reasons for Judgment of the Honourable Mr. Justice Mackenzie:

[1]                This appeal is from conviction for attempted robbery on the ground that the trial judge erred in admitting under the principled exception to the hearsay rule a prior statement of the witness, Troy Mason, implicating the three appellants in the offence.  The Crown accepts that the convictions must be set aside if the trial judge erred in admitting the statement for the truth of its contents.

[2]                The Crown alleged that the three young appellants with a fourth individual attempted to rob an elderly man, Armand Leblond, at his residence in Terrace B.C. on 5 March 2004.  The fourth individual was acquitted on a no evidence motion at trial.  The three appellants were convicted of attempted robbery and acquitted on the break and enter charge.  Mr. Mason was not charged.

[3]                Mr. Leblond testified that two young men entered his residence when he answered a knock on his door.  One said:  “This is a hold-up.”  Mr. Leblond backed up to the kitchen table, picked up a chair and swung it at the head of the first person to enter the premises.  That person went backwards against the other one and they both ran out.  Mr. Leblond shut and locked the door with the assistance of another occupant, Mr. Doell.  Mr. Doell looked out a window and saw four individuals leaving the house and going down the driveway.  He saw a fifth person waiting on the street at the end of the driveway.

[4]                The police were called.  They set up a perimeter and followed tracks in recent snow from the edge of the perimeter to a residence on Pine Street.  The house was put under surveillance.  The snow was too disturbed to trace any tracks from the perimeter to the Leblond residence.  Eventually the police entered the house on Pine Street and arrested five individuals including the three appellants and Mason.  They were taken to the Terrace RCMP Detachment shortly before midnight.  Mason was separated from the others.

[5]                At about 7 am Mason was taken by Const. Craig to an interview room where he gave a videotaped statement.  In it he stated: that he went to Mr. Leblond’s residence with the three appellants and a fifth individual; that the others intended to rob Mr. Leblond who one of the group believed to be a bootlegger; that he held back and D.T.A. and M.G.Q. were the two who entered the residence; and that afterward, they told him that D.T.A. had been hit over the head by “the old guy”.

[6]                Neither Mr. Leblond nor Mr. Doell was able to identify any of the individuals involved.  A neighbour who also saw five individuals in the vicinity also could not identify them.  The Crown’s case hinged on Mason’s evidence of identification.

[7]                At trial, when Mason was called by the Crown he recanted the statement.  The Crown was given leave to cross-examine but without effect. Crown counsel then applied to have the statement admitted as substantive evidence, relying on the principled exception to the hearsay rule for prior inconsistent statements of a witness as explained in R. v. B. (K.G.), [1993] 1 S.C.R. 740.

[8]                The trial judge conducted a voir dire to determine admissibility.  Mason testified that he was drunk and had no recollection of the events of the evening.  He recalled making a statement to the police but he said that everything in it was false.  He said he gave the statement because he was afraid that the police would keep him in custody if he did not tell them what they wanted to hear.  The trial judge described Mason as “one of the most unsatisfactory witnesses [he] had the unfortunate duty to have in [his] court” and he was “satisfied that, almost without exception, everything [Mason] said in [his] courtroom was a lie.” However, he concluded that Mason’s statement met the B. (K.G.) requirements of necessity and reliability and admitted it for the truth of its contents.

[9]                The three appellants testified and denied any attempt to rob Mr. Leblond.  The trial judge found their evidence was not credible and convicted them of attempted robbery.

[10]            The admissibility of Mason’s statement is the sole issue on this appeal.  Necessity is conceded and the issue turns on reliability.  The trial judge accepted that the test was whether, on the balance of probabilities, the statement had sufficient indicia of reliability to be admissible as if it had been given by Mason in evidence under oath.

[11]            The statement was taken by Const. Craig several hours after Mason had been arrested.  The trial judge accepted that the police were not able to interview Mason earlier because they were otherwise engaged on a busy night.  Constable Craig had established a rapport with Mason as a result of earlier contacts and the trial judge was satisfied that Mason’s statement was voluntary and not made as a result of threats or inducements.  All five individuals had been held separately from the time of their arrest until they were released and Mason had no contact with any of them between the time of arrest and his statement.  The statement was videotaped.  The statement was accepted to have been made voluntarily, in the sense that it was not obtained as a result of threats or inducements.

[12]            In his ruling that the statement was admissible the trial judge emphasized its reference to one of the appellants being hit over the head with a chair by “the old guy”.  He concluded that the statement had the necessary reliability because the chair incident was sufficiently distinct that Mason could not have made it up; a participant in the attempted robbery must have told Mason about it.  The appellants contend that it was a reversible error for the trial judge to use the extrinsic evidence of the chair incident on the voir dire to confirm the statement’s reliability for the purpose of determining its admissibility.  In this Court, they relied on R. v. Starr, [2000] 2 S.C.R. 144.  After the hearing of the appeal, the Supreme Court of Canada delivered reasons in R. v. Khelawon, 2006 SCC 57 directing (at para. 93) that Starr should no longer be followed as limiting the consideration of relevant extrinsic evidence on the question of admissibility.  Khelawon is conclusive against the appellants on the issue of any error in principle on the trial judge’s consideration of the Leblond and Doell evidence concerning the chair incident in determining threshold admissibility on the voir dire.  There remains an issue as to whether the trial judge misapprehended its significance on the issue of threshold reliability.

[13]            Khelawon reaffirmed the general principle that hearsay evidence is presumptively inadmissible because of the difficulty of testing the reliability of the declarant’s assertion.  It is only admissible under the principled exception to the hearsay rule if it can satisfy the twin tests of necessity and reliability.  Under our adversary system cross-examination is the primary means of testing reliability but it is not an absolute requirement if the ultimate objective of a fair trial can be met by other means.  The right to make a full answer and defence must be balanced with the interest of society in finding the truth.  Threshold reliability turns on whether there are adequate substitutes for the traditional evidentiary safeguards

[14]            The question that confronts us is whether the trial judge erred in concluding that the statement had sufficient circumstantial reliability to overcome the presumption against hearsay admissibility, keeping in mind that the issue of threshold reliability is distinct from the question of ultimate reliability to be determined by the trier of fact.  The issues are distinct even where, as here, the trial is before a judge alone.

[15]            The trial judge considered that the facts had parallels with the facts of B. (K.G.).  In that case four individuals were present when the victim was fatally stabbed by one of them, and three gave statements that it was the fourth person, the accused, who had the knife.  Each of the three recanted their statements at trial.  Lamer C.J., for the majority of the Supreme Court, decided that admissibility would depend on indicia of reliability that would substitute for the lack of an oath or affirmation in court, lack of contemporaneous cross-examination, and the inability of the trier of fact to observe the demeanour of the witness at the time the prior statement was made.  Here the statement was videotaped and the trial judge was able to view Mason’s demeanour.  He noted that all three of the B. (K.G.) witnesses were suspects and had motives to misrepresent the facts.  The statements were not made on oath or affirmation.

[16]            In Khelawon, Charron J. viewed the availability of the declarants as the most important contextual factor supporting threshold reliability in B. (K.G.).  The question is “whether the trier of fact will be in a position to rationally evaluate the evidence.”  [para 76]  The three witnesses in B. (K.G.) recanted their prior statements in testimony the trial judge rejected as not credible.  The Supreme Court concluded that notwithstanding that the witnesses were lying, it was open to the trial judge to compare their testimony with their prior statements for the purpose of determining whether the prior statements were sufficiently reliable to be admissible.  The Court repeated this passage from the opinion of Lamer C.J. in B. (K.G.) (at para 79):

In considering what would constitute an adequate substitute in respect of the prior inconsistent statement, he concluded (at pp. 795-96) that there will be "sufficient circumstantial guarantees of reliability" to render such statements substantively admissible where

(i)

the statement is made under oath or solemn affirmation following a warning as to the existence of sanctions and the significance of the oath or affirmation, (ii) the statement is videotaped in its entirety, and (iii) the opposing party ... has a full opportunity to cross-examine the witness respecting the statement ... Alternatively, other circumstantial guarantees of reliability may suffice to render such statements substantively admissible, provided that the judge is satisfied that the circumstances provide adequate assurances of reliability in place of those which the hearsay rule traditionally requires.[emphasis added].

 

[17]            In this case, any “full opportunity to cross-examine” was completely frustrated.  There was no meaningful comparison between different accounts because Mason denied any knowledge of the facts, apart from a grudging concession that he had given a statement to the police, which he asserted was completely false.  In these circumstances, the presumption of inadmissibility can only be overcome if the circumstances demonstrate a degree of reliability that it can be admitted into evidence in the search for truth without undermining the integrity of the trial process that normally depends on the right of an accused to test the evidence against him through cross-examination.

[18]            The trial judge concluded that the reliability of the statement was confirmed by the references to the chair incident.  There was no error in principle in comparing the statement with the evidence of Mr. Leblond and Mr. Doell, but I think he misapprehended the importance of the comparison.  It does not confirm features of Mason’s statement that were essential to a conviction.  It confirms that Mason was probably one of a group of five individuals in the vicinity of the attempted robbery but it does nothing to confirm the identity of the two individuals who entered the Leblond residence.  That was critical to at least one of the three appellants who did not enter the Leblond residence.  Moreover, the statement is entirely self-serving in its assertion that there was a common intention of the others to rob Mr. Leblond, but he was not a party to that agreement and counselled against it.

[19]             Apart from the limited significance of the comparison, the trial judge had only the videotape of the statement.  He was able to assess Mason’s demeanour during the interview, but there was no contemporaneous cross-examination or equivalent testing of Mason’s account. Mason’s intransigent recantation insulated the statement from any meaningful test of its reliability at trial, apart from the demonstration of Mason’s total unreliability as a witness.

[20]            Mason was under arrest when he gave the statement and, as the interviewing officer pointed out to him, he was 18 and “potentially facing adult consequences”; the stakes for him were higher than for the others.  Mason was released from custody shortly after the statement was taken and he was never charged.  He had a strong motive to misrepresent the facts to exculpate himself by incriminating the others.  His interest in misrepresenting facts to exculpate himself was obviously strong.

[21]            In B. (K.G.) there were three witnesses and three prior statements which provided a basis for comparison.  The statements were taken independently from the three witnesses in circumstances that underlined the duty to tell the truth, and they were consistent on the essential facts.  The witnesses were potential suspects but they were not under arrest and gave statements voluntarily in the presence of their parents and in one case a lawyer.  Here there is only one declarant who had no credibility as a witness and whose prior statement lacks confirmation on facts essential to a conviction.  To admit the statement under the principled exception the trial judge had to overcome the presumption against admissibility in circumstances where he must attribute credibility to a declarant totally lacking in credibility as a witness on an assessment of demeanour in the absence of contemporaneous cross-examination and worthless evidence at trial.  In my view, he misapprehended the extent of confirmation to be derived from the chair incident and in that respect fell into error.  Overall I do not think that the trial judge was in a position to rationally evaluate the evidence in terms of its reliability on facts essential to a conviction and therefore the presumption against admissibility could not be overcome.  In my view, the statement could not be relied upon in the search for truth and the integrity of the trial process was compromised by its admission.  I would allow the appeals accordingly.

[22]            As the Crown’s case depended on the admissibility of the statement, no point would be served by directing a new trial.  I would set aside the convictions and direct that acquittals be entered.

“The Honourable Mr. Justice Mackenzie”

 

I Agree:

“The Honourable Mr. Justice Donald”

I Agree:

“The Honourable Mr. Justice Low”