Reasons for Judgment of the Honourable Chief Justice Finch:

I.  INTRODUCTION

[1]                The appellant appeals from his conviction entered on 13 October 2005 on one count of first degree murder, following a trial by judge alone.  The two main issues on appeal are whether the learned trial judge erred in refusing a defence application to admit for their truth statements made by a witness, Malloway, to police officers in the months following the victim’s death; and erred further in refusing to admit the “extrinsic” evidence of two other witnesses, Barlow and Thomas, which it was said would have corroborated certain particulars in Malloway’s statements, and therefore supported their reliability, and hence admissibility.

[2]                Malloway was a witness on the voir dire into the admissibility of her statements at trial, but effectively recanted what she had told the police officers.

[3]                The learned trial judge declined to hear the evidence of Barlow or Thomas, relying on the law as stated in R. v. Starr (2000), 147 C.C.C. (3d) 449 (S.C.C.).  The judge refused to admit Malloway’s statements because, although they met the test of necessity, and the three primary criteria for threshold reliability, as expressed in R. v. B. (K.G.) (1993), 79 C.C.C. (3d) 257 (S.C.C.), he found that her statements to the police were the product of coercion, suggestion and manipulation by the interviewing police officer, to the extent that they failed to pass the test of threshold reliability.

[4]                On 14 December 2006, about one month before the hearing of this appeal, the Supreme Court of Canada pronounced judgment in R. v. Khelawon, 2006 SCC 57.  That judgment overruled certain aspects of the Court’s decision in Starr, and in particular statements concerning the admissibility of extrinsic evidence on the issue of threshold reliability.  Counsel for the appellant contends that, applying the law as it now stands, the trial judge would have admitted the evidence of Barlow and Thomas, and that on taking their evidence into consideration, the judge would have admitted the statements of Malloway made to the police.  He says a new trial must be ordered.

[5]                In the alternative, the appellant contends the learned trial judge erred in refusing to grant a stay of proceedings as a remedy for the investigative misconduct of the police officer who interviewed Malloway.  He says that if this Court does not order a new trial, it should direct a stay of proceedings.

[6]                The Crown says that the law as now stated in Khelawon would not have affected the trial judge’s ruling on the inadmissibility of Malloway’s statements for their truth.  And it says the Court correctly refused a stay because, while the police conduct in interviewing Malloway was quite improper, it did not deprive the defence of any evidence that would otherwise have been available to it.

II.  THE CROWN’S CASE

[7]                In the early morning of 7 December 2002, B.V., a 19 year old woman, set out on foot from her mother’s home on Prairie Avenue in Port Coquitlam to walk to the bus stop.  She was scheduled to be at work at 7:00 a.m.  She never arrived at work.  Somewhere along her route she came in contact with someone who took her to the nearby bank of the Coquitlam River, raped her, strangled her and forced her head under water until she died from lack of oxygen.  At the material time, neighbours in the vicinity heard the screams of a female, but as they were unable to determine their source, did nothing.  B.V.’s naked body was found at the river a few hours later.  Samples taken at autopsy from her mouth, genitals and rectal area revealed the presence of semen.  On analysis the semen was shown to be that of a single male donor, and it matched the appellant’s DNA.

[8]                One of the neighbours who heard the screams was Dennis Manderscheid.  On the morning of 7 December 2002, between 4:00 a.m. and 6:00 a.m. he heard a young girl yell “no” five or six times.  The voice sounded angry.  He also heard the voice say “Oh God” and “leave me alone.”  The voice stopped for two or three minutes and then there was a very loud yell “Oh God, no, not again” sounding shrill and afraid.  He heard no other voices.  He went onto his veranda overlooking Prairie Avenue to the east and west, but saw nothing.  The sound came from the area of Shaughnessy Street.

[9]                Another neighbour, Jodi Perri, resided in the 2100 block of Prairie Avenue.  She was awakened by the end of a scream and possibly the word “get” at about five minutes to six.  She thought it was a female voice.  She opened her window and front door, but heard nothing further.  It was foggy and she could not really see across the street.

[10]            Admissions filed on the voir dire included evidence of two additional witnesses who heard screams.  Maria Humphries who lived in the 2100 block of Prairie Avenue heard a young woman scream “Oh my God” repeated two or three times and sounding afraid.  The voice came from the direction of Shaughnessy Street shortly after 6:00 a.m.  Bernice Hizroth also lived in the 2100 block of Prairie Avenue.  Sometime after midnight, during the night of 6-7 December 2002 she heard a female screaming “Help me” and “Oh God help me.”

[11]            B.V.’s body was found at about 10:15 a.m.

[12]            An autopsy was conducted by Dr. Charlesworth on 9 December 2002.  He concluded the cause of death was mechanical asphyxia, an obstruction of the airway due to a combination of strangulation and then immersion in water.  B.V. was five feet five inches tall.  Swabs were taken from the mouth, inside and around the vagina, and inside the anus and around it.  He identified various abrasions and injuries to her body.

[13]            Dr. Charlesworth found a fair bit of blood oozing in the genital area from two tears in the hymen.  There was also a recent area of bruising along the right edge or entrance to the vagina.  The tears and bruising occurred either shortly before or at the time of death, but not after, and were caused by penetration or attempted penetration of the vaginal orifice.  Dr. Charlesworth said that a penis would cause these injuries, but not a foot long flashlight.  He said a flashlight would cause more damage than was seen by him, particularly in an individual like B.V., who he did not believe had had intercourse before the injuries were inflicted.

[14]            Around the anus there was small bruising and two small splits in the edge of the anus.  These were also caused at or near, but before death, and would typically be caused by attempts at penetration.  He said that if a flashlight had been inserted into the anus to half its length he would have expected to see “these injuries and more.”

[15]            Forensic testing of the four swabs taken from the victim’s oral cavity, inside the vagina, around the vaginal area, and the rectal area, indicated the presence of semen.  They were sent for DNA analysis as was a vial of B.V.’s blood.  The blood yielded a single profile.  All of the other samples indicated a mixed profile, with a male and female component in each.  The female profiles all match that in the victim’s blood.

[16]            The male was the same in all four samples.  That profile matched that in a sample taken from the appellant.  The estimated probability of selecting an unrelated individual at random from the Canadian Caucasian population with the same profile is one in forty-four trillion.  In addition, one hundred and twenty-two other samples were tested, including samples taken from Wallace Brunt and Ray Goulet, persons who feature in the narrative of the witness Malloway.  All of the one hundred twenty-two samples tested were excluded as being the donor of the male profile.

III.  MALLOWAY’S STATEMENTS TO THE POLICE

[17]            Stella Malloway was a 42 year old resident of the McAllister Apartments in Port Coquitlam.  She was interviewed four times by Corporal Toews on 4, 18, 19 and 27 February 2003, the interviews commencing about two months after the killing of B.V.  The transcript of Corporal Toews’ interviews with Malloway fills six volumes of appeal books.  It was agreed before the trial judge that the series of interviews conducted by him should be considered as one statement, which would be admitted or excluded in its entirety.

[18]            In his factum, the appellant summarizes Malloway’s statements as follows:

9.         a.  On Friday night, she met her friends Wallace Brunt (Brunt) and Linda Jukes (Jukes).  They smoked ‘crack’ cocaine at the apartment of her neighbour Brian Barlow and then travelled in a Ford Explorer, driven by Brunt, to pick up another friend, Raymond Goulet (Goulet), in Coquitlam.

b.  The four of them drove around drinking vodka and 7-up from red disposable cups and also smoking ‘crack’ through long tubes.  There was other liquor in the car.  After going to the grounds at Riverview, they decided to go “4 wheeling” at the Coquitlam River on the south side of the Lougheed Highway because Brunt liked it there.  They eventually decided to travel to the Coquitlam works yard on the other side of Port Coquitlam, north of the Lougheed Highway.

c.  As the group drove along Shaughnessy Street, north of the Lougheed Highway, they encountered a young woman (the girl) walking south on the east side of Shaughnessy and they stopped beside her.  Malloway remembered the exact location where they encountered the girl – across the street from a church called “The Lady of Assumption” – and she remembered the jacket the girl was wearing.

d.  Brunt and Goulet were acting “like dogs”.  Goulet said vulgar things to the girl and got out of the vehicle in an effort to have the girl get in.  The girl tried to get away from him but he grabbed her by the right wrist to prevent her from leaving and she screamed.  Brunt told Goulet to get back in the vehicle and then became annoyed and drove away leaving Goulet on the street with the girl.  Brunt said that he would meet Goulet “up there”.  The last time Malloway saw the girl, she was being held by Goulet who was leading the girl east on Prairie Avenue.

e.  Brunt drove the vehicle to the Coquitlam works yard and then, leaving Malloway and Jukes inside, got out of the vehicle taking his flashlight.  He walked south along the river.  Malloway decided to follow him and as she walked down the path toward Prairie Ave., she heard what sounded like screams; “crying and Oh my God” and “no no no no”.  She then saw the girl with Brunt on one side of her and Goulet on the other; they were just going off the ‘Port Coquitlam Trail’ on to another trail to the river.  Goulet was trying to take the girl’s jacket off.  They were going down toward the water although the girl was not going willingly.  Brunt’s flashlight was on at that time.  Brunt then walked ahead of Goulet and the girl with his flashlight on.  Malloway ran away.

f.  A short time later Malloway decided to return to see if she could help.  When she got back, the girl was already naked and laying on her side with Goulet holding her.  Brunt was sticking his flashlight in the girl’s butt.  The girl’s voice was muffled and though she could not see the upper part of the girl’s body, Malloway thought Goulet was holding the girl’s mouth.  Brunt hit the girl with his flashlight, Malloway could not see where, but afterwards there was silence.  The girl was close to the water – which Malloway could see as a backdrop.  Malloway then ran back to the vehicle.

g.  Brunt had a fetish about flashlights.  On an earlier occasion when Malloway had been with him performing a sexual act, Brunt had inserted a flashlight into his own “butt” and requested that Malloway pull on it.

h.  When Brunt returned to the vehicle he was soaking wet.  When Goulet returned he was sweating.  They left the area and went to a residence known as the “Crack Shack”.  Brunt went inside and later emerged looking like he had showered and cleaned up.  They went briefly to a 7-11 store in Port Coquitlam and at 9:00 a.m., Malloway was dropped off at her apartment.  She immediately went to Brian Barlow’s apartment and told him what had happened.  She was just babbling to him for about 10 minutes.  She remembered the time when she was dropped off because the Courthouse clock was chiming.

(paragraph lettering added)

[19]            Counsel for the appellant concedes that Malloway’s statements were “disjointed” and that they “evolved” over the month that she was interviewed.  It appears that Malloway began by telling Constable Toews that she had no idea about the murder.  She progressed to saying that she had been out with Wallace, Linda and Ray four wheeling by the river on a night a few days before the murder.  Then she said that the night the four of them were out was the night of December 6 to 7, and that they had passed a girl on the street near Prairie and Shaughnessy.  Later she said that the girl they saw on the street got into the vehicle with them.  Later she said that Ray got out and spoke to the girl on the street.  Still later she said that Ray grabbed the girl by the wrist, and walked her along the street, after the girl yelled at him to leave her alone.  She said Wallace drove up to the works yard and then got out taking a big flashlight with him while she and Linda waited in the truck until the two men returned without the girl.  Still later Malloway said that after Wallace got out of the truck so did she, making her way to a vantage point from which she could see Wallace and Ray assaulting the girl by the river using the flashlight, inserting it half way into the girl’s anus, and then striking her with it, and the girl going silent and still.  Finally she said that there was also a third person involved with Wallace and Ray in the assault on the girl, but she could not see or did not know who it was.

[20]            At trial counsel for both Crown and defence agreed that the conduct of Corporal Toews in interviewing Malloway was grossly improper.  Counsel agreed, and the trial judge ultimately found, that the officer pressured Malloway to come up with a story, encouraged her to speculate on matters about which she had no knowledge, or was uncertain, repeatedly asked her leading and suggestive questions, encouraged her to pursue “suppressed memories” and attempted to play on her emotions.

[21]            After Malloway’s fourth interview with Corporal Toews, she was to give a statement to Sergeant Kevin Hackett on 24 March 2003.  It was expected to be a polygraph examination.  Sergeant Hackett warned Malloway about public mischief, advised her that she had the right to consult counsel, asked if she was involved in the death of B.V. or if she had lied to the police, told her he needed to know if she had just dreamed up her account, told her he had some concern about what she had told him, asked if it was possible that she had put her account together based on what she was told, and asked whether it was possible that she did not see “Ray and Wallace assault [B.V.].”

[22]            Although Malloway continued to assert that she was being honest, Sergeant Hackett told her he thought she was confused and mistaken about what she actually saw.  Malloway said that she wanted to do the right thing.  Hackett declined to subject her to a polygraph examination.

IV.  THE VOIR DIRE

[23]            Malloway had been called by the Crown as a witness on the Preliminary Inquiry, for the purpose of being cross-examined by the defence.  At the Preliminary Inquiry she testified that she could not say whether much of what she had told Corporal Toews was true or not.  The Crown did not call her as a witness at trial.

[24]            Before electing whether to call evidence, counsel for the defence sought a voir dire to determine the admissibility of Malloway’s statements to the police, as evidence of the truth of their content.

[25]            The defence position was that Malloway’s evidence would support the proposition that B.V. was murdered by someone other than the appellant.  The Crown’s position was that Malloway’s evidence was not admissible on the basis of R. v. Grandinetti, [2005] 1 S.C.R. 27, namely that it was insufficient to provide an air of reality to the defence of possible third party involvement in the murder. 

[26]            In the course of the voir dire, Malloway was called to testify, and by agreement, was cross-examined by both counsel for the Crown and defence.

[27]            Malloway testified that she had given evidence at the Preliminary Hearing on 3 June 2004 and had told the truth at that time, although she also said then that she did not know what was true.  She testified that early in 2003 she was using a lot of drugs and had a drug problem.  She lived in an apartment building where other addicts resided.  Brian Barlow was her neighbour and she felt close to him.  He was also a drug user.  Wallace Brunt was a drug dealer and used to come around regularly.  As to her statements, she said she wanted to help the police, but her memory was not perfect, partly because of the drugs.  She felt Corporal Toews had pushed her to remember things.

[28]            She testified that she remembered meeting a girl on Shaughnessy, but she always had difficulty remembering and from then on “things get really fuzzy.”  She said “the whole thing is fuzzy.”  She said there had been times since 7 December 2002 when she had been confused about what she remembered and what she did not.  She said that she had told Sergeant Hackett the truth that day as she knew it.

[29]            When cross-examined by Crown counsel, Malloway said she was doing her best to tell the truth, but she agreed that “today” she was unable to say whether what she told the police was true or not.  Her answers to defence counsel were her best attempt to tell the Court what she had told the police, but she was unable to say that what she had told the police was true.  She had memories of being in a vehicle near Our Lady of Assumption Church and seeing someone, but she was not saying it was B.V., and after that “I just don’t know.”

[30]            Malloway said that in December 2002 she was doing lots of drugs including cocaine, crack and valium, and using alcohol.  She used as much alcohol and drugs as she could get her hands on.  The same was true in February and March of 2003, and she admits to drug use at the time of the preliminary hearing in June 2004.  As of the date she testified on the voir dire, she had been “clean” for eight months.

[31]            She also testified that in February 2003 she was well aware of the murder of B.V.  The story was in the media, and the people that she hung out with had talked about it and about who could have done it.  She thought her memories as told to the police could have been like cocaine psychosis, imagination or a dream, and it was possible that she told the police what she thought they wanted to hear.  She felt Corporal Toews had pushed her into things and she felt pressured.  She said it was true that she had no knowledge of who killed B.V.  She had no memory of anything after passing the church.  In court she did not know if any of what she had said concerning Wallace and Ray at the river actually happened, and she agreed with counsel that it was fair to say she thinks it probably did not.  She said that Wallace’s name had come to mind when she was questioned by Corporal Toews because Wallace had told her the police had spoken to him.  She said that Ray’s name had come to mind in the interview because he had mentioned to her that he was a suspect in the murder.

[32]            In addition to the evidence of Malloway on the voir dire, the defence announced its intention to lead evidence, if permitted, from two further witnesses, Brian Barlow and Craig Thomas.  Defence counsel outlined the proposed evidence of those witnesses whose testimony was to be adduced for the purpose of supporting “the ultimate reliability” of Malloway’s statements.

[33]            Counsel said that Barlow was expected to testify that on 7 December 2002 he was living in the McAllister Apartments, the building resided in by Malloway.  He said shortly after daybreak he learned either from Malloway or from Ray of a murder on the north side of Port Coquitlam.  He could not remember whether Malloway or Ray provided the information to him but he did remember their arrival at his apartment in the early morning hours.

[34]            Counsel said Barlow’s evidence was significant because he claimed to have been told about the murder not only at a time prior to the murder of B.V. being public knowledge, but before her body was even discovered.

[35]            Counsel told the Court that Craig Thomas was expected to testify that between 4:30 a.m. and 6:00 a.m. on 7 December he was standing beside his bicycle on the east end of the bridge over the Coquitlam River when he heard two men hooting and hollering, and a woman screaming.  He recognized one of the voices as that of Wallace Brunt.  He would say the noise was coming from the east side of the river perhaps 50 to 100 yards north of the bridge.

[36]            Counsel said the evidence of Thomas would be significant because of the extent to which it supported Malloway’s narrative of events.

V.  THE TRIAL JUDGE’S RULING ON ADMISSIBILITY 5 OCTOBER 2005

[37]            The learned trial judge summarized the general nature of Malloway’s statements to Corporal Toews as follows:

[15] What emerges is a sequence of purported recollections by Ms. Malloway under police interrogation.  At the outset, she purported to have no memory of any events that followed her seeing a young woman at the Our Lady of Assumption Church until some time the next morning.  She believed that she lost consciousness at that point while waiting for Wallace to prepare crack cocaine for consumption.  Nothing in her original recounting of events to police implicates Wallace or Ray in any crime against the deceased.

[16] Later, in the course of persistent and pressing cross-examination by police, Ms. Malloway purports to gradually recover memories of the evening that she says must have been previously suppressed by her.  Under significant pressure and with considerable suggestion by the interrogating officer, she eventually settled on a story in which she witnesses Ray and Wallace sexually assaulting the deceased with a flashlight and then beating her.

[17] Over the course of the interrogations, Ms. Malloway’s story goes through a number of iterations and false starts, and her purported memory goes from being non-existent to indistinct and vague to certain.  The process can fairly be described as one in which Ms. Malloway believes herself to be recovering suppressed memories with the help of assertions from the officer that she must know more than she is recalling, and with occasional strong hints and suggestions from the officer as to what Ms. Malloway must have seen and what parts of her purported recollections might be true.

[38]            The judge reviewed in some detail the law concerning the admissibility of prior statements made by a recanting witness.  He held that the “necessity” requirement for the admissibility of hearsay evidence had been met.  He also held that the three specific requirements for “reliability” as described in B. (K.G.) were met.  While Malloway’s statements to the police were not under oath, she was “fully cognizant of her duty to tell the truth”.  Almost all of her statements were videotaped and she was available for cross-examination at trial.

[39]            However, the judge held that the circumstances in which Malloway’s statements to the police were made rendered them so unreliable that they should not be admitted.  The essence of his reasoning is in these passages:

[33] Some passages in R. v. B. (K.G.) appear to suggest that these three criteria for the admissibility of previous inconsistent statements are intended to encompass all of the concerns of threshold reliability that are applicable under the principled approach to hearsay evidence.  I do not think that such a reading of R. v. B. (K.G.) is correct.  The court is concerned in that case to deal with the special problems that arise when a court considers prior inconsistent statements.  It does not intend to water down the more general requirements of the principled approach to hearsay evidence.  Indeed, some language in B. (K.G.) is fairly clear in that regard.  For example, the court emphasizes that it does not intend to throw out all rules of evidence in favour of the three criteria of admissibility that it suggests.

[34] At the outset of the court’s discussion of the new admissibility rule, at S.C.R. 784, C.C.C. 285-6, the majority of the court states:

As a threshold matter, before discussing the specific requirements of the reformed rule, I would adopt the requirement embodied in the provision proposed by the Law Reform Commission of Canada, and in the English Civil Evidence Act 1968, that prior inconsistent statements will only be admissible if they would have been admissible as the witness’s sole testimony.  That is, if the witness could not have made the statement at trial during his or her examination-in-chief or cross-examination for whatever reason, it cannot be made admissible through the back door, as it were, under the reformed prior inconsistent rule.

[35] This is essential if a jury is to compare an out-of-court statement with one made in court.  While there are obvious differences in the way out-of-court and in-court statements are elicited, where techniques used outside the court are of a nature that would clearly be impermissible in a court proceeding, it seems to me that a court should very carefully assess the circumstances of the out-of-court statement before concluding that it is proper to place it before the trier of fact, knowing that a comparison will inevitably be made between in-court testimony and the prior inconsistent statement.

. . .

and further:

[48] … In short, my concerns with Ms. Malloway’s statements do not stem from the three specific factors discussed in B. (K.G.).  As I have already indicated, however, I do not take that case as authority for the proposition that if the three specific factors are addressed, a statement will automatically be admissible.  Even where those three factors have been addressed, threshold reliability remains a concern.  The court must consider whether other circumstances of the making of the statements so detract from the threshold reliability that the statements ought not to be admitted in evidence.

[49] In this case, the conduct of Corporal Toews in conducting the interrogations of Ms. Malloway is alarming.  Ms. Malloway is repeatedly encouraged to speculate in making statements.  She is asked, for instance, whether she knows anyone who might be involved in the murder.  When she replies that Wallace and Ray might be – apparently on the basis that Wallace was detained by police on the day of the murder, and on the basis that Ray told her at one point that he was a suspect – she is encouraged to pursue suppressed memories involving them.  She is strongly encouraged to speculate, and then to accept that the young woman, who she believed she saw, was [B.V.] (the murder victim), though her own evidence does not initially give her any confidence that that is the case.

[50] Ms. Malloway’s uncertainty as to whether the events she recalls to the police occurred on the night of the murder is ignored by the investigator, and he suggests to her that she appeared to be “pretty certain” that the events occurred on that evening.  As well, Corporal Toews frequently suggests alternatives to Ms. Malloway, effectively narrowing her story down to one or two possible scenarios.  He demands that she fill in details that she says she does not remember, and assures her that she must know more than she is saying.

[51] Ms. Malloway is pressured to come up with a story.   She is interrogated for hours at a time, and is required to go over the same ground, time and again, until she provides Corporal Toews with an answer that he considers satisfactory.  Attempts are made to play on her emotions, suggesting that only by coming up with a story can she help the deceased and her family.

[52] I am also very concerned with the technique used by Corporal Toews of inviting Ms. Malloway to close her eyes and pretend she is watching a movie.  At many points in the interrogation, she appears to be in a trance-like state describing, using the present tense, what she is seeing apparently in this imaginary movie.  Few attempts are made to bring her back to reality until she has already firmly asserted that she has recovered a memory.

[53] The interrogator encourages Ms. Malloway to engage in speculation and in imagining herself in certain places at certain times.  Even given the inherent difference between questioning in court and questioning in police interrogations, I find the nature of the questioning and the pressures brought to bear on Ms. Malloway shocking.  The circumstances of the interrogation do not provide circumstantial guarantees of reliability; quite the opposite.  They go a long way towards encouraging Ms. Malloway to imagine a story and to gradually mould it to a set of known facts.  It is an atmosphere ideal for implanting false memories.

[40]            The learned trial judge then considered whether the proposed extrinsic evidence of Barlow and Thomas should be admitted to lend support to the reliability of Malloway’s statements.  He held that such supportive evidence was not admissible, applying the law as stated by the Supreme Court of Canada in Starr, supra:

[64] In the case at bar, the defence has provided me with indications of various pieces of evidence that could be placed before me for the purpose of corroborating certain parts of Ms. Malloway’s statement.  It does not appear to me that it would be proper for me to take these into account.  F.J.U. appears to be truly an exceptional case in which clear unequivocal corroboration confirming virtually the entirety of the out-of-court statement was available.  At best, it indicates that when faced with virtually incontrovertible proof of the reliability of a statement, a court must have the flexibility to depart from even the strictures of Starr and admit hearsay evidence.

[65] The corroborative evidence in this case is not of that ilk.  It does little to inspire confidence in the bulk of Ms. Malloway’s statements in confirming primarily inconsequential particulars.  The one piece of corroborative evidence that could potentially corroborate a key element of Ms. Malloway’s statement is a statement by another person that he heard a voice which he thought was Wallace’s in the area of the murder at around the time it probably was committed.  The corroborative evidence, however, is neither incontrovertible nor corroborative of details of Ms. Malloway’s statement.  It cannot stand as a substitute for threshold reliability.  To consider the evidence at this stage of proceedings would, in my mind, be no more than to consider ultimate reliability at the threshold stage.  That is precisely what the Supreme Court of Canada has forbidden in Starr.

[41]            Finally the judge addressed the defence submission that where the defence tendered potentially exculpatory hearsay evidence, a relaxed standard of admissibility should be applied.  The judge held that no matter what standard was applied, Malloway’s statements to the police failed to meet a threshold of sufficient reliability to be admissible.

VI.  THE DEFENCE APPLICATION FOR A STAY

[42]            After the trial judge ruled that Malloway’s hearsay statements were inadmissible, the defence elected not to call evidence and applied for a stay of proceedings.  The defence argued that the improper conduct of Corporal Toews in interviewing Malloway amounted to an abuse of process because his conduct interfered with the defendant’s right to make full answer and defence as guaranteed by ss. 7 and 11(d) of the Charter.

[43]            The trial judge dismissed the application for a stay.  In his ruling he said in part:

[11] … In my view, the Crown is correct in saying that this is not a case in which evidence has been destroyed or in which the admittedly inappropriate police interrogation of Ms. Malloway has interfered in any way with the accused’s defence.

[12] I find that Ms. Malloway is able, today, to give untainted evidence of her recollections of the night of December 6 and 7, 2002.  The problem is not that Ms. Malloway's memory has been somehow destroyed by police questioning.  Rather, it is that she did not, at any time, have clear and reliable recollections of what occurred on the night of December 6 and the early morning of December 7, at least after passing the intersection of Prairie Avenue and Shaughnessy Street in Port Coquitlam.

[13] Her original story that she passed out at that point in time may well be accurate.  It appears that she was drinking heavily that night and was also under the influence of crack cocaine.  The various stories of the night in question that Ms. Malloway gave to police lack, as I found in my ruling of October 5, threshold reliability.  They are inadmissible not because of some technical rule of evidence, but because they lack evidentiary value.  No concept of a fair trial or of a right to make full answer and defence can reasonably include a right to make use of statements that are so lacking in reliability that they do not have evidentiary value.

[14] The argument of the defence on this application, with all due respect, falls into error in taking as its point of departure the contention that, but for police misconduct, Mr. Post would have been able to rely on recollections of Ms. Malloway that might have been helpful to him.  The fact is that, to the extent that Ms. Malloway has general recollections of the events of the night in question, they have not been destroyed.  In saying this, I do not overlook Ms. Malloway's evidence that her current doubts as to the veracity of her statements to police result, at least in part, from the interview she had with Sergeant Hackett.  I find that there was nothing improper in that interview and any doubts that Ms. Malloway now feels are legitimate.

[15] … In the final analysis, Ms. Malloway’s statements to police are not rejected because of investigatory misconduct, but because there is not a principled basis to admit them.  They do not have evidentiary value.

[16] Equally, I disagree with the premise of the accused’s argument that “but for investigatory misconduct, Malloway’s evidence would have been available to be assessed by the trier of fact.”  Ms. Malloway’s evidence, again, has not been destroyed.  The only thing unavailable to the trier of fact is a statement that owes its very existence to investigatory misconduct.  Absent such misconduct, not only would it not be available, it would never have existed.

VII.  REASONS FOR CONVICTION 13 OCTOBER 2005

[44]            Based on the evidence as to her cause of death, the trial judge first concluded that B.V. was murdered.  He then concluded that B.V. was sexually assaulted on the morning of the murder, based on the evidence of bodily injuries and the presence of semen.  He concluded next that, on all the evidence, the only reasonable inference was that the sexual assault and the killing were part of a single transaction.

[45]            As to whether the appellant was the perpetrator of the crime he reasoned:

[27] The final issue is whether the evidence establishes Mr. Post as the perpetrator of the crime.  As defence counsel points out, this case is unusual in the degree to which it depends on DNA evidence.  I am mindful that I must consider not only the evidence, but also the absence of evidence in deciding whether a reasonable doubt is raised.

[28] Other than the DNA evidence, evidence implicating Mr. Post is minimal – merely that he lived in the area, and that his cellular phone was used at about 5:30 a.m.  At its highest, this evidence might give rise to some likelihood that he was awake and in the area at the time of the murder, but the evidence is of limited value even to prove those minimal facts.  No fibre, footprint or other real evidence connects the accused with the murder.  No eyewitnesses exist.  As defence counsel point out, cases such as R. v. Westergard, supra and R. v. Larson, 2003 BCCA 18, 10 B.C.L.R. (4th) 112, included greater evidence other than DNA evidence than is present in the case at bar.

[29] I am satisfied, however, that the DNA evidence, in and of itself, proves beyond reasonable doubt that it was Mr. Post who sexually assaulted [BV].  Any suggestion that someone else committed the murder would be sheer speculation rather than a basis for harbouring reasonable doubt.  The only reasonable conclusion here is that Mr. Post murdered [BV] in the course of or in the very immediate aftermath of a sexual assault.

VIII.  THE LAW:  KHELAWON AND STARR

[46]            R. v. Khelawon revisits the principled exception to hearsay evidence, as it has developed in the Supreme Court of Canada since 1992 in a series of cases including R. v. Smith, [1992] 2 S.C.R. 915; R. v. B. (K.G.), supra; R. v. U. (F.J.), [1995] 3 S.C.R. 764; R. v. Hawkins, [1996] 3 S.C.R. 1043; R. v. Khan, [1990] 2 S.C.R. 531; R. v. Starr, supra; and R. v. Mapara, [2005] 1 S.C.R. 358.

[47]            The Court restates much of what is now well settled law:

            1.         A hearsay statement is an out-of-court statement adduced to prove the truth of its contents, in the absence of a contemporaneous opportunity to cross-examine the declarant. 

            2.         Hearsay evidence is presumptively inadmissible.

            3.         It is inadmissible because generally it is not possible to test the reliability of a hearsay statement.

            4.         A hearsay statement may be admitted for its truth if it is shown to be both necessary and reliable.

            5.         Its reliability must be sufficient to overcome the dangers arising from the difficulties of testing it. 

            6.         The onus of establishing, on a balance of probability, both necessity and reliability is on the person who seeks to adduce the evidence.

            7.         The overarching principle is trial fairness which embraces not only the rights of the accused, but broader societal concerns including truth as the goal of the trial process.

            8.         There are two main ways of establishing reliability.  The first is that because of the circumstances in which the statement was made, there is no real concern about the statement’s truth.  This approach is embodied in traditional exceptions to the rule against hearsay such as dying declarations, spontaneous utterances, and statements against pecuniary interest.

9.         The second way of establishing reliability is because the statement’s truth and accuracy can be sufficiently tested.  The optimal means of testing reliability is to have the declarant state the evidence in court, under oath, and subject to contemporaneous cross-examination.  In some cases where the optimal means are unavailable, it will still be possible to sufficiently test the truth and accuracy of the evidence because of the presence of adequate substitutes, including (a) an oath or its equivalent; (b) an opportunity to observe the statement being made (e.g. a video); and (c) the opportunity to cross-examine the declarant on his or her earlier statement.

            10.       Trial fairness requires consideration of factors beyond necessity and reliability.  Even if those two factors are met, the trial judge has a discretion to exclude hearsay evidence where its probative value is outweighed by its prejudicial effect. 

            11.       The trial judge must also be satisfied on a balance of probabilities that the statement was not the product of coercion of any form, whether involving threats, promises, excessively leading questions by the investigator or other person in a position of authority, or other forms of investigatory misconduct.

            12.       There is a distinction between threshold reliability (i.e. reliability sufficient to be admissible) which is a legal question for the judge; and ultimate reliability, which is a question for the trier of fact.

[48]            In R. v. Starr the Court held that extrinsic evidence was inadmissible on the issue of threshold reliability.  The Court said:

[217] At the stage of hearsay admissibility the trial judge should not consider the declarant’s general reputation for truthfulness, nor any prior or subsequent statements, consistent or not.  These factors do not concern the circumstances of the statement itself.   Similarly, I would not consider the presence of corroborating or conflicting evidence.  On this point, I agree with the Ontario Court of Appeal’s decision in R. v. C. (B.) (1993), 12 O.R. (3d) 608; see also Idaho v. Wright, 497 U.S. 805 (1990).  In summary, under the principled approach a court must not invade the province of the trier of fact and condition admissibility of hearsay on whether the evidence is ultimately reliable.  However, it will need to examine whether the circumstances in which the statement was made lend sufficient credibility to allow a finding of threshold reliability.

[49]            In Khelawon the Court held that those comments should no longer be followed.  Charron J. said:

[93] As I trust it has become apparent from the preceding discussion, whether certain factors will go only to ultimate reliability will depend on the context.  Hence, some of the comments at paras. 215 and 217 in Starr should no longer be followed.  Relevant factors should not be categorized in terms of threshold and ultimate reliability.  Rather, the court should adopt a more functional approach as discussed above and focus on the particular dangers raised by the hearsay evidence sought to be introduced and on those attributes or circumstances relied upon by the proponent to overcome those dangers.  In addition, the trial judge must remain mindful of the limited role that he or she plays in determining admissibility – it is crucial to the integrity of the fact-finding process that the question of ultimate reliability not be pre-determined on the admissibility voir dire.

[Emphasis added.]

[50]            She adopted as sound the dissenting opinion of Kennedy J. in Idaho v. Wright, 497 U.S. 805 (1990) who reasoned that in considering admissibility the Court should take into account not only circumstances existing at the time the statements were made, but also the existence of corroborating evidence as indicia of reliability.

[51]            Charron J. said:

[100] In my view, the opinion of Kennedy J. better reflects the Canadian experience on this question.  It has proven difficult and at times counterintuitive to limit the inquiry to the circumstances surrounding the making of the statement.  This Court itself has not always followed this restrictive approach. …

[52]            She pointed out that in some of the earlier Canadian cases, extrinsic evidence was considered in deciding threshold reliability.  For example, in Khan, a semen stain was relevant to the reliability of a child’s hearsay statement.

IX.  ISSUES

[53]            The questions for us are:

            1.         Whether the judge erred in excluding Malloway’s statement having found that it was both necessary and met the three specific criteria for reliability; and

            2.         Whether the judge erred in refusing to hear the evidence of Barlow and Thomas as evidence that might corroborate the threshold reliability of Malloway’s statement, and thereby render it admissible.

X.  DISCUSSION

A.         The first issue

[54]            On the first issue, the appellant’s position is that once the judge found necessity and the first three criteria for reliability to have been met, the inquiry was over and Malloway’s statements should have been admitted.

[55]            With respect, this overlooks the principle restated in Khelawon that “ … even if the two criteria are met, the judge has the discretion to exclude hearsay evidence where its probative value is outweighed by its prejudicial effect” (para. 49) and further that:

[48] … Trial fairness embraces more than the rights of the accused.   While it undoubtedly includes the right to make full answer and defence, the fairness of the trial must also be assessed in the light of broader societal concerns: see R. v. Mills, [1999] 3 S.C.R. 668, at paras. 69-76.  In the context of an admissibility inquiry, society’s interest in having the trial process arrive at the truth is one such concern.

[56]            The appellant’s approach also fails to take into account the direction at para. 93 of Khelawon quoted above at para. 49 of these reasons that the Court should “focus on the particular dangers raised by the hearsay evidence…and on those attributes or circumstances relied upon by the proponent to overcome those dangers.”

[57]            I have no doubt that the trial judge had a discretion to exclude Malloway’s statement, even if it met the test of necessity and the first three specific requirements for reliability.  On her own evidence Malloway was a heavy user of both drugs and alcohol at the time of B.V.’s death in December 2002, and more importantly, a heavy user of drugs and alcohol at the time she was interviewed by Corporal Toews.

[58]            The interviews took place more than two months after the night in question.  In the interim there was extensive media coverage of the murder, and Malloway and her acquaintances talked about the case and speculated as to whether persons they knew could be the killer.

[59]            More tellingly, there was no prospect of any meaningful cross-examination of Malloway.  Her position on the voir dire was that she could not say whether the contents of her statements to Toews were true or not.  In R. v. U. (F.J.) Lamer C.J. said at para. 46:

[46] I set out the proper procedure for the voir dire in my reasons in B. (K.G.), at pp. 297-301.  After the calling party invokes s. 9 of the Canada Evidence Act, and fulfils its requirements in the voir dire held under that section, the party must then state its objectives in tendering the statement.  If the statement will only be used to impeach the witness, the inquiry ends at this point.  If, however, the calling party wishes to make substantive use of the statement, the voir dire must continue so that the trial judge can assess whether a threshold of reliability has been met.  The necessity criterion need not be assessed as it is met whenever a witness recants.  The first factor contributing to reliability is the cross-examination of the witness.  If the witness provides an explanation for changing his or her story, the trier of fact will be able to assess both versions of the story, as well as the explanation.  However, where a witness does not recall making an earlier statement, or refuses to answer questions, the trial judge should take into account that this may impede the jury’s ability to assess the ultimate reliability of the statement.

[Emphasis added.]

[60]            Finally there was the conduct of Constable Toews during the four interviews of Malloway in the month of February 2003.  The trial judge, having listened to all of the tapes of the interviews, described Corporal Toews’ conduct as “shocking.”  He described the impermissible tactics Toews used to induce Malloway to make the statements she did.

[61]            With these considerations in mind, it is evident that the probative value of Malloway’s statements to Corporal Toews was minimal, if not non-existent.  “Prejudicial effect” is almost always considered in the sense of the evidence’s inculpatory capacity, or its likelihood to do harm to the accused’s case.

[62]            However, Khelawon reminds us that the overarching principle in considering admissibility is “trial fairness” and society’s interest in truth as the goal of the trial process.  It is not difficult to see how admission of Malloway’s statements might well have led the trier of fact away from the truth, particularly in view of the fact that there was no possibility of effectively cross-examining her.

[63]            The danger in admitting Malloway’s evidence is that the trier of fact might have been persuaded to rely on one or more of the various stories Malloway told, without that version having been effectively challenged in court.

[64]            Khelawon instructs the Court deciding admissibility to focus on the dangers of the hearsay evidence tendered “and on those attributes or circumstances relied upon by the proponent to overcome those dangers.”  In this, counsel for the appellant pointed to the trial judge’s finding that the three specific criteria for admission of hearsay evidence – an oath or equivalent, opportunity to observe the declarant (a video), and opportunity to cross-examine – were all present.

[65]            However it is clear that the most important of these three, namely the opportunity for cross-examination, existed only notionally because while Malloway was present in the courtroom, there was no real opportunity to test her account because of her inability to recall what she saw, or to say that what she had said previously was true.

[66]            I am well satisfied that on the law as it stood at the date of trial in October 2005, the learned trial judge did not err in holding Malloway’s hearsay statements to be inadmissible for the truth of their content.

B.         The Second Issue

[67]            On the second issue, the question is whether the learned trial judge erred in law in refusing to hear the evidence of Barlow and Thomas that might have corroborated the threshold reliability of Malloway’s statement, and thereby rendered it admissible.  On this issue, the provisions of s. 686(1)(b)(iii) require consideration.

[68]            Counsel for the appellant says that under the decision in Khelawon, the evidence of Barlow and Thomas would be admissible on the threshold inquiry.  He says the danger of admitting Malloway’s hearsay evidence could be mitigated or overcome by the admission of that evidence.  He says exclusion of their evidence on the voir dire was an error of law, and that on this ground as well, a new trial should be ordered.

[69]            With respect to Barlow, counsel said he would testify that early on the morning of 7 December 2002 he learned from either Malloway or Goulet of a murder.  It would be Barlow’s evidence that he received this information before knowledge of the murder was made public, and even before B.V.’s body had been discovered. 

[70]            As to Thomas’ evidence, counsel said he would testify that between 4:30 a.m. and 6:00 a.m. on 7 December 2002 while standing on a bridge over the Coquitlam River he heard two men “hooting and hollering”, and a woman screaming, and that he recognized one voice as that of Wallace Brunt.  Thomas would say that these noises were coming from a point perhaps 50 to 100 yards north of the bridge.

[71]            Counsel for the Crown responds that the proposed evidence of Barlow and Thomas was either unsupportive of Malloway’s evidence, or of very limited relevance.  Counsel points out that while Thomas’s evidence would have referred to hearing male voices “hooting and hollering”, all other witnesses including Malloway herself, said they heard only a female screaming.  As to Barlow, Crown counsel points out that according to Malloway, she was still drunk and high when she got to Barlow’s residence, and was not certain what she had said there.  She agreed with Cst. Toews that she did not know the girl was dead at that time.

[72]            The Crown emphasizes that Malloway’s statement made it clear that she, Barlow and Thomas had been sharing information about the murder and the night in question.  All were part of a group who had been speculating about what had occurred.  In those circumstances, whatever Barlow and Thomas might have had to say about material issues could not be described as independent evidence and therefore should not be considered as capable of corroborating Malloway’s statement.  The Crown asserts that the judge did not err in deciding that their evidence should not be considered in determining the admissibility of Malloway’s statement.

[73]            The question is whether their evidence would, if heard on the voir dire as to the admissibility of Malloway’s hearsay statements, have adequately addressed the dangers of admitting Malloway’s statements for the truth of their content.

[74]            I would observe that Barlow’s evidence was equivocal.  He said he could have been told of the murder by either Malloway or Goulet.  Thomas’ evidence both supports and contradicts some of Malloway’s statements.  The Crown is correct in saying that nowhere in her various accounts does she mention men’s voices “hooting and hollering” at the time Brunt and Goulet purportedly assaulted the victim.

[75]            In its factum, the Crown did not raise the curative proviso of the Criminal Code, s. 686(1)(b)(iii).  However, this Court raised it during the hearing and Crown counsel said that she would rely on that section if it were necessary to sustain the conviction.  In R. v. Jolivet (2000), 144 C.C.C. (3d) 97 (S.C.C.), Binnie J. observed that where the Crown has not relied on the proviso in written submissions, the Court might raise the issue and leave it to the Crown’s decision.  He held at 116-17:

[t]he Court would be failing its institutional responsibilities by withholding such a suggestion in circumstances where it thought the issue ought at least to be considered. Ordering a new trial raises significant issues for the administration of justice and the proper allocation of resources. Where the evidence against an accused is powerful and there is no realistic possibility that a new trial would produce a different verdict, it is manifestly in the public interest to avoid the cost and delay of further proceedings. Parliament has so provided.

[76]            The onus remains on the Crown to satisfy the court that there is no reasonable possibility that the verdict would have been different had the trial judge not committed an error of law.

[77]            The relevant provisions of s. 686 are:

686.(1) On the hearing of an appeal against a conviction … the court of appeal

(a)        may allow the appeal where it is of the opinion that…

(ii)        the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law …

(b)        may dismiss the appeal where…

(iii)       notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred.

[78]            It is not in dispute that, in light of Khelawon, the exclusion of Barlow and Thomas’ evidence on the voir dire was an error of law.  In his reply submission, counsel for the appellant argued that the likely consequence of that error was the exclusion of evidence, not only Barlow and Thomas’, but Malloway’s as well, and he said this Court could not correct such an error because the problems with Malloway’s evidence “were all for the trier of fact”.  He said the Court of Appeal could not deal with wrongly excluded evidence.  He points out that no argument was advanced that the verdict was unreasonable, so there is no scope for the Court of Appeal to reconsider or reweigh the evidence.

[79]            It is true that, if admitted, any problems with Malloway’s evidence would be questions for the trier of fact.  However, Barlow and Thomas’ evidence if admissible on the basis tendered was relevant to the legal question of whether Malloway’s statement passed the test for threshold reliability.  Those witnesses, by agreement, did not testify on the voir dire, and this Court is as well able as the trial judge to determine what effect, if any, their evidence as summarized by counsel would have had on the legal question of admissibility.

[80]            When one looks at the overall import of their evidence, weighed against all the dangers associated with admitting Malloway’s hearsay statements for their truth, I have no doubt that her statements would have been excluded in any event.  The evidence of Barlow and Thomas does nothing to address the internal inconsistencies in Malloway’s stories, her use of drugs and alcohol at the time of her purported observations, and at the time of her interviews by Corporal Toews, Corporal Toews’ improper tactics in conducting those interviews, or the inability to cross-examine Malloway effectively at trial.

[81]            Perhaps most important, Malloway’s statement, when looked at most favourably from the defence point of view, did not account in any way for the DNA evidence.  Forensic testing proved that the semen found on B.V.’s body did not come from either Brunt or Goulet.  The admission of Malloway’s statement would have left that evidence unexplained.  Defence counsel did not suggest any theory of defence by which Malloway’s evidence could have been an answer to the DNA evidence, or raised a reasonable doubt as to the appellant’s guilt in light of that evidence.

[82]            It is not suggested that the exclusion of Malloway’s statement affected the appellant’s decision not to testify, or to call evidence.

[83]            In my opinion, if the evidence of Barlow and Thomas, as described by counsel, had been admitted on the voir dire, it would not have affected the trial judge’s decision to exclude Malloway’s statement.  The exclusion of their evidence did not result in any substantial wrong or in a miscarriage of justice.

[84]            I am therefore of the view that applying the law as now understood as a result of R. v. Khelawon, the learned trial judge did not err in excluding Malloway’s statements to Corporal Toews.

XI.  THE RELAXED STANDARD OF ADMISSIBILITY

[85]            The appellant submits that Malloway’s statements constitute exculpatory evidence, and therefore that a relaxed standard of admissibility should apply to them.  Counsel relies on several cases for that proposition, including R. v. Finta (1994), 88 C.C.C. (3d) 417 (S.C.C.).  In that case, Cory J. cited with approval the remarks of Martin J.A. in R. v. Williams (1985), 18 C.C.C. (3d) 356 (Ont. C.A.), where he noted that “a court has a residual discretion to relax in favour of the accused a strict rule of evidence where it is necessary to prevent a miscarriage of justice and where the danger against which an exclusionary rule aims to safeguard does not exist." 

[86]            The trial judge in this case agreed with that proposition and went even further, noting that there might be cases where evidence that is insufficiently reliable to form any part of the basis upon which a trier of fact convicts an accused may nevertheless have sufficient reliability to raise a reasonable doubt.  However, he concluded that Malloway’s statements could not meet even a relaxed standard of admissibility:

[69]      There must, however, be some touchstone of reliability whether evidence of this sort is tendered by the Crown or by the accused.  In the case at bar, I cannot conceive of any articulable standard under which I could find Ms. Malloway's statement to police to meet a threshold of reliability.  To allow it to be entered would be tantamount to abdicating any gatekeeping function in respect of this type of evidence.

[70]      This is not a case where I find that the evidence tendered engages concerns of fairness or due process.  I therefore rule that the statements to police by Ms. Malloway are not admissible for their truth, though they may, of course, be used for the purposes of cross-examination.

[87]            I respectfully agree with those observations.  In R. v. Kimberley (2001), 157 C.C.C. (3d) 129 (Ont. C.A.), Doherty J.A., in referring to cases supporting a relaxed standard of admissibility when it is necessary to prevent a miscarriage of justice, cautioned that “[t]hose cases do not, however, invite an abandonment of the threshold reliability inquiry where hearsay evidence is tendered by the defence.”  

[88]            I see no error in the trial judge’s application of the law, and conclude that he properly excluded Malloway’s statements.  However, there is one further point raised by the Crown which deserves attention. 

[89]            As the Crown points out, there is no mention of a relaxed standard in Khelawon.  The Court says that the party seeking to adduce the evidence must establish necessity and reliability on a balance of probabilities.  The Crown says that this indicates that a uniform standard is to be applied, regardless of which party seeks to adduce the hearsay evidence.

[90]            I respectfully disagree, and take the Court’s remarks to be simply a re-statement of the principled approach to hearsay.  I do not interpret anything in Khelawon as intended to preclude the application of a relaxed standard in a particular case where the trial fairness requires it, and the avoidance of a miscarriage of justice demands it.  There is support for this position in the following passages from that case:

[47]…The onus is on the person who seeks to adduce the evidence to establish these criteria on a balance of probabilities. In a criminal context, the inquiry may take on a constitutional dimension, because difficulties in testing the evidence, or conversely the inability to present reliable evidence, may impact on an accused's ability to make full answer and defence, a right protected by s. 7 of the Canadian Charter of Rights and Freedoms: Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 1505. The right to make full answer and defence in turn is linked to another principle of fundamental justice, the right to a fair trial: R. v. Rose, [1998] 3 S.C.R. 262. …

[48]…Trial fairness, as a principle of fundamental justice, is the end that must be achieved. Trial fairness embraces more than the rights of the accused. While it undoubtedly includes the right to make full answer and defence, the fairness of the trial must also be assessed in the light of broader societal concerns: see R. v. Mills, [1999] 3 S.C.R. 668, at paras. 69-76. In the context of an admissibility inquiry, society's interest in having the trial process arrive at the truth is one such concern.

XII.  THE REFUSAL OF A STAY AND THE ABUSE OF PROCESS ARGUMENTS

[91]            At trial, the appellant took the position that he required Malloway’s statements in making a full answer and defence because her statements constitute evidence upon which the trier of fact may have been left with a reasonable doubt.  Defence counsel says that it was police conduct that had the effect of destroying those statements and making them inadmissible, and that as a result his rights under ss. 7 and 11(d) of the Charter have been infringed.  The remedy, in counsel’s submission, is a stay of proceedings.

[92]             The appellant suggests that this Court approach this issue by determining if there is reasonable prospect that Malloway’s statements had any independent substance.  If so, the Court should then consider whether that evidence would have provided a defence with an “air of reality”, as set out in R. v. Cinous (2002), 162 C.C.C. (3d) 129, (S.C.C.) thus determining whether the exclusion of that evidence had an impact on trial fairness.   

[93]            However, the above approach assumes that Malloway’s statements constituted otherwise probative evidence, and that the police conduct destroyed that evidence.  The trial judge held to the contrary:

[12]      I find that Ms. Malloway is able, today, to give untainted evidence of her recollections of the night of December 6 and 7, 2002.  The problem is not that Ms. Malloway's memory has been somehow destroyed by police questioning.  Rather, it is that she did not, at any time, have clear and reliable recollections of what occurred on the night of December 6 and the early morning of December 7, at least after passing the intersection of Prairie Avenue and Shaughnessy Street in Port Coquitlam.

[94]            The learned judge also noted that:

[14] …The fact is that, to the extent that Ms. Malloway has general recollections of the events of the night in question, they have not been destroyed.  In saying this, I do not overlook Ms. Malloway's evidence that her current doubts as to the veracity of her statements to police result, at least in part, from the interview she had with Sergeant Hackett.  I find that there was nothing improper in that interview and any doubts that Ms. Malloway now feels are legitimate.

[95]            As a result, this case is unlike those where evidence has been deliberately destroyed or otherwise withheld.  As the trial judge observed, “the only thing unavailable to the trier of fact is a statement that owes its very existence to investigatory misconduct.  Absent such misconduct, not only would it not be available, it would never have existed.” [at para. 16]  There has been no infringement of the appellant’s right to make full answer and defence.  That right entitles him to the rules and procedures which are fair in the manner in which they enable him to defend himself against, and answer the Crown’s case: R. v. Rose (1998), 129 C.C.C. (3d) 449 (S.C.C.).  It does not extend to allowing an accused to rely on evidence created by police misconduct.

[96]            That is not to diminish the seriousness of the misconduct in this case.  Accepting the trial judge’s characterization of Corporal Toews techniques as ‘shocking’ and ‘alarming’, the appellant is unable to show that he suffered any prejudice as a result.  There is therefore no basis on which to grant a stay.

XIII.  CONCLUSION

[97]            For the reasons set out above, I would dismiss the appeal.

“The Honourable Chief Justice Finch”

I agree:

“The Honourable Mr. Justice Donald”

I agree:

“The Honourable Mr. Justice Low”