COURT OF APPEAL FOR BRITISH COLUMBIA
|
Citation: |
R. v. Naicker, |
|
|
2007 BCCA 608 |
Date: 20071211
Docket: CA034309; CA034345
Docket: CA034309
Between:
Regina
Respondent
And
Randy Nesh Naicker
Appellant
– and –
Docket: CA034345
Between:
Regina
Respondent
And
Harpreet Singh Narwal
Appellant
|
Before: |
The Honourable Mr. Justice Low |
|
The Honourable Mr. Justice Lowry |
|
|
The Honourable Mr. Justice Chiasson |
| R.C.C. Peck, Q.C., J.T.J. Campbell and N.E. Harris |
Counsel for the Appellant,
|
| I. Donaldson, Q.C. |
Counsel for the Appellant,
|
| G.G. Matei and M.A. Huot |
Counsel for the Respondent (Crown) |
|
Place and Date of Hearing: |
Vancouver, British Columbia |
|
7 and 8 November 2007 |
|
|
Place and Date of Judgment: |
Vancouver, British Columbia |
|
11 December 2007 |
|
|
Written Reasons by: |
| The Honourable Mr. Justice Lowry |
|
Concurred in by: |
| The Honourable Mr. Justice Low The Honourable Mr. Justice Chiasson |
Reasons for Judgment of the Honourable Mr. Justice Lowry:
[1] The main question raised by this appeal is whether a statement made to police by an accomplice in a crime implicating two others, as well as himself, is admissible against them under the principled approach to the hearsay rule to prove their identity as participants when the accomplice, who was tried separately, is called but refuses to testify at their trial. Further questions are also raised relating to the misapprehension of evidence and the reasonableness of the verdict.
[2] The appellants, Randy Naicker and Harpreet Narwal, were convicted by Mr. Justice Josephson of the kidnapping, confinement, and extortion of Harpreet Singh: 2006 BCSC 1058. Roman Narwal, Harpreet Narwal's brother, was tried and convicted before the appellants were tried. Singh maintained the two appellants and Roman Narwal had abducted him and demanded money. Roman Narwal was arrested about 48 hours after the crime was committed and, upon being interviewed by a police officer, made a statement in which he acknowledged that he, his brother, and a person he identified only as "Randy" had committed the crime. Roman Narwal refused to testify at the appellants' trial, citing his personal safety in prison, and was held in contempt. The judge then convened a voir dire to determine the admissibility of his statement.
[3] Before the judge, it was accepted the admissibility of the statement required the kind of analysis based on the threshold considerations of reliability and necessity mandated by the Supreme Court of Canada in R. v. Khan, [1990] 2 S.C.R. 531 and R. v. Smith, [1992] 2 S.C.R. 915. Necessity was accepted. The judge then focussed on determining whether the circumstances in which the statement was made "sufficiently negate the inherent dangers in hearsay evidence to enable a safe evaluation of ultimate reliability at the end of the trial". The sole issue then was reliability. The judge confined his analysis to considering only the circumstances in which the statement was made and took no account of any extrinsic corroborative evidence. He concluded reliability to the threshold essential for admission had been established: 2006 BCSC 935.
[4] The appellants now say it was not open to the judge to consider the admission of Roman Narwal's statement to prove their identity as participants in the crime on the Khan/Smith principled approach to hearsay. They do not dispute the facts found by the judge that bear on the reliability of the statement in any way that would engage the applicable standard of review, nor do they challenge his analysis as being inconsistent with the principled approach. Rather, they maintain that, because Roman Narwal was, on the Crown's case, an accomplice who could not be cross-examined, the admissibility of his statement is, as a matter of principle, at odds with decisions of the Supreme Court of Canada in R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, and R. v. Couture, 2007 SCC 28, 220 C.C.C. (3d) 289, which were decided after the appellants were convicted. Naicker contends the judge misapprehended the evidence and the verdict is unreasonable in any event.
The Crown's Case
[5] Singh testified that he was 24 years old and lived with his mother and brother in Surrey. On the evening of 17 January 2005, he was picked up from his home by the two Narwals, whom he knew well, and a man known to him only as Nash. He was taken in Harpreet Narwal's van to an apartment in Burnaby, some distance away, where he was held for a period of hours. About half an hour after they entered the apartment, Randy Naicker arrived. Singh had met him before and knew him as "Randy" or "Big Bar". Singh identified Naicker in the dock. The judge recounted Singh's testimony as to what happened as follows:
[4] Naicker asked the complainant how much money he had. When he replied that he had none, someone punched him on the side of his head. Roman Narwal informed the complainant that they were "serious about the money," which he estimated to be $400,000. At this point, there was some discussion of getting the money from an uncle of the complainant who owns a liquor store in California. The complainant was then placed in a smaller bedroom. Thereafter, Roman Narwal entered with a gun in his hand, gave the complainant his cell phone and told him to tell his mother that he was okay, adding that if he said anything else, he would "blow his head off." At one point during the exchange, Roman Narwal kicked the complainant in the stomach. The complainant complied. Roman Narwal then left and Randy Naicker entered. The complainant saw a person of Chinese descent enter through the main door to the suite. Randy Naicker then informed the complainant that unless he raised the money the group sought, "we're going to get your mom and brother and hand them over to the Chinese guys and they will kill them in front of you." Naicker then left the room.
[5] The two accused and Roman Narwal subsequently returned. Together, they decided it was too late to call the complainant's uncle. After a brief discussion, Naicker asked the Narwals to keep the complainant in a motel room for the night, offering them money for that purpose. The accused Harpreet Narwal declined. Naicker told the others to tie up the complainant, but they did not comply. "Nash" said and did nothing in the apartment. The same group that travelled to the apartment returned to their vehicle and departed about three hours after their arrival.
[6] At this point, the complainant's mother called again and he told her he would be home soon. At his mother's request, the accused Harpreet Narwal spoke to her as well, and told her that the complainant would be spending the night at his house.
[7] After dropping off Nash and picking up Sarpreet Johal, the group drove to the residence of Roman Narwal so he could retrieve a change of clothes. They parked in an underground car park and Roman left. The complainant noticed that the car door was left unlocked and the two other occupants of the car were in seatbelts. He opened the door and ran. The accused Harpreet Narwal yelled "shoot him, shoot him". The complainant saw Sarpreet Johal pointing a gun at him, but no shot was fired. He described the route he ran to an A & W "drive-through", with the accused Narwal chasing him in the van. He told the occupants of one vehicle there to call police, but they left without doing so. He ran to the pick-up window and told a server to call 911. When she said the phone wasn't working, he jumped inside the window. His 911 conversation was played in court solely to convey his emotionally distraught condition at the time. He has never returned to his residence.
[6] The Crown adduced evidence to corroborate Singh's testimony. The police officer who arrested Naicker testified he met the description Singh had given the police in terms of his large size, ethnicity, and extensive tattoo marks on his body, which Singh said he saw at the apartment. Photographs and diagrams of the apartment were consistent with Singh's description. Naicker's fingerprints were found in the apartment, there was a diet plan bearing the name "Randy Naicker" on the refrigerator, and the keys to the apartment were found in his pocket when he was arrested leaving the building with someone who had just been in the apartment. Video surveillance showed Singh arriving and leaving the building with the Narwals and Nash at the material times. The clerk at the fast food restaurant testified to Singh's state of anxiety when he jumped through the window. The recording of the 911 call Singh made was, according to the judge, that of a terrified person. After Harpreet Narwal was arrested, the police found plastic ties ("zap straps") and Singh's cellular telephone in his van.
[7] The police officer who interviewed Roman Narwal testified to the statement Narwal made to him. Upon being taken into custody, Narwal was advised of his Charter rights. The officer put Narwal in contact with his counsel of choice. He then took Narwal to an interview room. The discussion they had there was video recorded. The officer first attempted to develop a rapport with Narwal, giving him food and engaging in small talk. He reminded him of his rights and the fact his statements could be used in evidence against him, and then he outlined Singh's allegations stating the two Narwals, Johal, and a person named Randy kidnapped him and took him to an apartment to try to get $400,000 out of him. (Singh initially told the police Johal, as opposed to Nash, had been in the van and at the apartment, but subsequently changed what he had said.) Narwal responded by saying they were not going to "grab anybody" without a good reason and that Singh would not tell the complete story or he would be "sitting in jail for 25 years". When the officer asked him to explain, Narwal said he would not talk about it "on the record" by which he said he meant not "on video or nothing".
[8] The officer then took Narwal to a part of the foyer of the detachment which was closed to the public at the time. Narwal's demeanour changed slightly. He seemed more relaxed and confident outside of the video room, speaking in deliberate terms and making eye contact with the officer. Narwal stated that Singh was a middle man in a drug smuggling operation that included himself, his brother, and others. Singh was suspected of having facilitated $400,000 worth of their drugs being "ripped off" and he was suspected of being in some way involved in a recent double murder of two of their associates. Narwal said they took Singh to get their money back. He, his brother and Nash, not Johal, picked Singh up at his mother's house in Narwal's brother's van. They immediately confronted him, telling him he owed them the money. They took him to what Narwal said was "Randy's place" in Burnaby. Narwal refused to identify who he meant by Randy, but he did say Randy was there. They used no guns and did not strike Singh. At one point Narwal's brother spoke with Singh's mother on the telephone. Randy told them to go somewhere else and they left. Their plan was to take Singh to where he and those they believed had stolen the drugs could be put together in an effort to play him off against them to find out what had happened. On route they stopped so Narwal could get some clothes. When he returned to the van it was all over. Singh knew he was in serious trouble and that is why he ran.
[9] During their conversation, the officer intervened and summarized what he was being told. Narwal nodded or otherwise confirmed his summaries. At the end of the interview, the officer summarized the entire story for Narwal and Narwal confirmed its accuracy. When the officer took Narwal back to the cells, Narwal stated that if anyone tried to make him testify in court, he would deny having said anything to the police. The officer immediately wrote out in detail all of what he had been told.
The Reasons for Admitting the Statement
[10] The judge set out what he considered to be the dangers of admitting Roman Narwal's statement to prove the identity of Randy Naicker and Harpreet Narwal, as follows:
[45] In the case at bar, the specific hearsay dangers arising from the circumstances in which the statement of Roman Narwal was obtained are the risk of an inaccurate account of the statement, the inability to observe the demeanour of Narwal during the foyer conversation, the 48 hour delay in the taking of the statement (leaving an opportunity to concoct a story), the danger of [the constable] leading the witness by setting out the complainant's story and, primarily, the inability of the accused to conduct cross-examination.
[11] With respect to the absence of any opportunity to cross-examine Roman Narwal, the judge relied in particular on R. v. B.(K.G.), [1993] 1 S.C.R. 740 and R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144:
[59] Lastly, I cannot accept the submission of the defence that the unavailability of cross-examination in this case renders the statement of Roman Narwal inadmissible under the principled approach. While I acknowledge that a lack of cross-examination is "perhaps the most important of hearsay dangers" as Lamer C.J.C. put it, in B.(K.G.), supra, I cannot accept that the lack of cross-examination in the case at bar should necessarily render the statement of Roman Narwal to [the constable] inadmissible, in light of the circumstantial guarantees of trustworthiness set out below. As Lamer C.J.C. likewise noted in Smith, supra:
The movement toward a flexible approach was motivated by the realization that, as a general rule, reliable evidence ought not to be excluded simply because it cannot be tested by cross examination.
[60] This sentiment was echoed by Iacobucci J. in R. v. Starr, supra, at ¶ 216:
It is the role of the trial judge to determine threshold reliability by satisfying him or herself that notwithstanding the absence of the declarant for cross-examination purposes, the statement possesses sufficient elements of reliability that it should be passed on to be considered by the trier of fact.
Given my findings below, I find that this concern is more appropriately addressed when assessing weight at the end of the trial.
[12] Before identifying the circumstantial guarantees of trustworthiness, the judge observed:
[62] In the foyer, he acknowledged that he and others had held the complainant against his will, but endeavoured to minimize the incident, provide a motive and suggest that the complainant was implicated in a double homicide in the incident which provided that motive.
[63] What is significant is that he was not attempting to deflect responsibility from himself toward the others, namely the two accused in these proceedings. The others named were his associates and simply a part of the story. He appears to have believed, at least initially, they were already known to police and in custody in relation to the same incident.
[13] He then said he found a number of the indicia of reliability recognized in the authorities to be applicable. First, the statement was a voluntary confession, long recognized as the highest and most satisfactory proof of guilt. Second, the statement was internally consistent as to the motive of the participant and the details of the events. Third, Roman Narwal had special knowledge of the incident as a professed participant. Fourth, his demeanour as described by the police officer was throughout unremarkable. Fifth, the officer's recollection of what was said, with the assistance of his notes, was highly accurate. Sixth, Roman Narwal was aware of his relationship with the officer, having been advised of his rights and afforded legal advice. Seventh, the officer asked no leading questions, apart from outlining Singh's account, and was able to obtain a great deal of information about the motive for the kidnapping and details of how it was carried out. Eighth, Roman Narwal had no motive to lie about the identity of those with whom he participated in the crime. The judge said:
Finally, and perhaps most importantly, is the absence of any motive to lie on the part of Mr. Narwal. The statement was wholly inculpatory. Nowhere does Mr. Narwal attempt to downplay or lessen the significance of his own participation in the events in question, in comparison to the two accused in the case at bar....
[14] The judge considered the fact that 48 hours had elapsed between the time Singh made his 911 call and Roman Narwal made his statement to the police officer. He recognized this time lapse afforded Narwal ample time to concoct a story and was a factor to be considered. However, he reasoned it was, in the circumstances, a neutral factor. The time available to deflect responsibility from a declarant to others may be a significant factor, but it is less significant where, as here, the declarant does not attempt to do so.
[15] The judge then concluded the requisite standard of threshold reliability had been met such that the statement made by Roman Narwal to the police officer was admissible.
The Reasons for Conviction
[16] Singh proved to be a witness whose testimony would not by itself support a safe conviction. While he had no criminal record, he was shown to have lied both to the police and under oath in respect of unrelated incidents in which he was involved. His statements to the police regarding the kidnapping were not entirely consistent nor was his testimony at trial. While the judge found that the inconsistencies were of minimal significance in the circumstances, he concluded that a Vetrovec warning was required (R. v. Vetrovec, [1982] 1 S.C.R. 811), meaning it was necessary he examine the corroborating evidence tendered by the Crown to determine whether it lent sufficient support to Singh's testimony to permit it to be relied on as truthful regarding the essential ingredients of the offences.
[17] The judge then turned to the corroborating evidence, including Roman Narwal's statement to the police officer, outlined above. He explained why, in his view, the evidence confirmed the essential elements of Singh's account. The video surveillance placed Singh and the Narwals at the apartment building for a period of time that was consistent with Singh's account. Singh's obvious anxiety when he jumped through the window at the restaurant was consistent with his belief his life and the lives of his family were in jeopardy. Singh's cellular telephone found in Harpreet Narwal's van was consistent with his being in that vehicle on the night in question. Singh's description of the apartment in Burnaby was consistent with the photographs, although Singh had been there before. Randy Naicker's fingerprints, as well as a diet plan with his name on it, were found there.
[18] With respect to Roman Narwal's statement, the judge recognized he had to consider whether it was ultimately reliable, having particular regard for there having been no opportunity to cross-examine Narwal. The judge considered there to be little evidence not considered in the voir dire that bore on the reliability of the statement. He said, even after considerable speculation (presumably in argument), Narwal had no apparent motive to lie about the involvement of himself and the others. His knowledge of the alleged offences and the double homicide was consistent with other evidence in the trial. Narwal's statement confirmed many of the details in Singh's account of the kidnapping.
[19] The judge said the inability to cross-examine a witness is always a significant consideration in weighing the reliability of a statement. However, he expressed the view it was of lesser significance in the factual circumstances of this case than it might be otherwise. Roman Narwal, the two accused, and Singh were associates in criminal activity. Narwal was willing to attempt to implicate Singh in a double murder. He believed Singh had participated in stealing drugs of considerable value from him. He would not "rat" on his associates. The judge was of the view Narwal would not likely have provided any evidence of assistance to the trier of fact if he had testified.
[20] The judge found those portions of Narwal's statement implicating himself and his friends in "grabbing" and holding Singh for $400,000 to be reliable. It was independent confirmatory evidence of much of Singh's testimony.
[21] He concluded that, on an examination of the independent evidence as a whole, the relevant aspects of Singh's evidence were to be accepted and accordingly he found Randy Naicker and Harpreet Narwal guilty.
The Appellants' Case on the Statement
[22] The appellants say that, leaving aside the possibility of exceptional circumstances, the post-offence statement of an accomplice can never be admissible for the truth of its content in the trial of other persons accused of the commission of a crime, particularly if the accomplice cannot be cross-examined. This is said to be so because, by virtue of a long-established rule of evidence, the statement of one accused person is not admissible in evidence against another when they are tried jointly as co-accused, since the statement of an accomplice is inherently unreliable and the declarant is not a compellable witness. For the rule in joint trials, they cite R. v. Parberry (2005), 202 C.C.C. (3d) 337 (Ont. C.A.) at para. 15:
It is well established that an accused's statement to the police that is not made in furtherance of any common design is evidence for or against only that accused. In a joint trial there is a risk that the jury may use a statement by one accused against a co-accused. In some circumstances the risk of misuse of the statement may be so substantial that the trial judge will direct separate trials. Where the accused are tried together, the trial judge is required to direct the jury as to the limited use of the statement. The law in this regard is reviewed in the dissenting opinion of Estey J. in R. v. McFall (1979), 48 C.C.C. (2d) 225 (S.C.C.).
[23] The appellants say there is no difference in principle where the two are tried separately, the declarant refuses to testify, and the declarant cannot then be cross-examined. The same rule must apply; the Crown cannot do indirectly what it cannot do directly. It is not in either case sufficient to say the admission of the evidence was necessary and then invoke consideration of the principled approach to hearsay despite the indicia of reliability that may exist in the circumstances.
[24] What is said to be the inherent unreliability of the statement of an accomplice lies in the concern that an accomplice may seek to evade criminal liability by falsely blaming the other participant in a crime either to minimize his own involvement or obtain more favourable treatment for himself. Because an accomplice has been involved in the crime, he will be aware of details enabling him to substitute the roles of others for his own: R. v. Meston (1975), 28 C.C.C. (2d) 497 (Ont. C.A) at 501. However, in Vetrovec, following a broad discussion of the reliability of the evidence of an accomplice generally, the following was stated at 823:
None of these arguments can justify a fixed and invariable rule regarding all accomplices. All that can be established is that the testimony of some accomplices may be untrustworthy. But this can be said of many other categories of witness. There is nothing inherent in the evidence of an accomplice which automatically renders him untrustworthy.
[25] The appellants advance various considerations in support of their proposition that, as a matter of principle, the statement of an accomplice is never admissible for the truth of its content against other participants in a crime in the absence of the availability of cross-examination.
[26] They first say that, with respect to a statement made by an accomplice in particular, the inability to cross-examine the witness must be an overriding consideration. It is, they say, a matter of fairness in the conduct of a criminal trial. They maintain it is contrary to the basic tenets of the administration of justice to admit evidence of this kind, and they urge a careful consideration of the Supreme Court's decision in Khelawon.
[27] In Khelawon, the court had the opportunity to revisit the principled approach to hearsay and review its development since Khan and Smith were decided. The case concerned the admissibility of a video-recorded statement given to police by an aged and infirm resident of a care facility who said the owner of the facility had assaulted him in an egregious manner and threatened his life. The owner was charged but the resident died before the trial. The judge admitted the recorded statement but it was excluded by the Court of Appeal and the exclusion was upheld by the Supreme Court of Canada. Of particular significance, the preclusion found in Starr at paras. 215 and 217 against considering extrinsic evidence, either supporting or contradictory, as part of the analysis when assessing the admissibility of a statement under the principled approach to hearsay, was seen as no longer supportable (Khelawon at paras. 4, 93). The principled approach to hearsay does not, however, appear to me to have been otherwise altered; it was affirmed.
[28] Khelawon had nothing to do with a statement of an accomplice, but the appellants maintain support for their proposition is to be found in much of what was said. Indeed, they say the judge could not have undertaken the analysis he did in this case and concluded Roman Narwal's statement was admissible if Khelawon had been decided before they were tried. They point to statements addressing the strong presumption of the inadmissibility of hearsay evidence and the significance of the inability to compel cross-examination. But the appellants do not point to anything that, under the principled approach to hearsay, could be said to preclude the admissibility of the statement of an accomplice whose cross-examination cannot be compelled.
[29] The concern over trial fairness was actually said to be one of the paramount reasons for rationalizing the exceptions to the hearsay rule with the principled approach. While the untrustworthiness of evidence can best be illuminated by cross-examination, the Charter right of an accused to make full answer and defence is not a right to confront or cross-examine per se. Cross-examination is but one means of achieving trial fairness, which embraces more than the rights of the accused. It includes the societal interest of having the trial process lead to the truth. Trial fairness in the admissibility of a hearsay statement can be achieved in the absence of cross-examination where the evidence can be established to be so reliable that little would be gained by the declarant being subjected to cross-examination (Khelawon, paras. 47-49). The point was further addressed at para. 63:
However, in some cases it is not possible to put the evidence to the optimal test, but the circumstances are such that the trier of fact will nonetheless be able to sufficiently test its truth and accuracy. Again, common sense tells us that we should not lose the benefit of the evidence when there are adequate substitutes for testing the evidence.
[30] The appellants do not explain, and I am unable to see, why what was said there is not as applicable to the statement of an accomplice as it is to any other witness. While it is clear the test of threshold reliability must necessarily be high, trial fairness is not compromised simply because an accomplice who made a statement upon which the Crown seeks to rely cannot be cross-examined when the test of reliability is actually met – when the circumstantial guarantee of trustworthiness is clear. The principled approach to hearsay is concerned only with the threshold of reliability for the purposes of admissibility; it is not determinative of the ultimate reliability of the evidence. The whole basis on which the principled approach can be invoked is that, even in the absence of cross-examination, some evidence can in the circumstances under which it was obtained be accepted as sufficiently reliable to permit it to be admitted for consideration by the trier of fact.
[31] The appellants next say their proposition is well supported by R. v. B.(K.G.). There, at trial, three witnesses who had told the police their friend, the accused, had stabbed and killed the victim, recanted what they had said. The judge, whose decision was upheld by the Court of Appeal, applied what was described as the orthodox rule of evidence in refusing to permit the statements to be used other than to impeach the credibility of each witness, and the accused was acquitted. The Supreme Court of Canada modified the orthodox rule, saying notwithstanding that it had been recanted at trial, a statement could be admitted for the truth of its contents against an accused on the basis of the principled approach to hearsay, providing additional indicia and guarantees of reliability to those outlined in Khan and Smith were established. If the statement was made under oath, thereby elevating its solemn nature to that of the recanting testimony at trial; if it was video recorded, to permit the witness's demeanour at the time the statement was made to be assessed by the trier of fact; and if there was, as there invariably would be, an opportunity to cross-examine the witness, the statement could be admitted (at 795-796). The additional requirements were not met and the acquittal was upheld.
[32] The appellants contend the requirement that a statement made by an accomplice can only be admitted if the declarant can be cross-examined is consistent with the framework for the admission of hearsay evidence the Supreme Court provided in B.(K.G.). They say the same considerations must govern the admissibility of the statement of an accomplice and the recanted statement of a witness. Both give rise to particularly acute questions of reliability. Both are inherently suspect and fundamentally different from the kind of statements made by witnesses that are customarily admitted under the principled approach to hearsay.
[33] However, B.(K.G.) had nothing to do with the statement of an accomplice and was concerned only with inconsistent statements. I do not accept that the case can be taken to have established a framework for the admissibility of any other kind of hearsay statement. The heightened threshold requirements prescribed where a witness recants a prior statement are not a prescription for precluding admissions of the statement made by an accomplice who is not cross-examined. The requirements were developed by the court to address the unique dangers related to the admission of prior inconsistent statements that were fully discussed. It is not enough to simply say, as the appellants do, that a statement of an accomplice and a recanted statement of a witness are both so inherently unreliable that the requirements for the admissibility of the former must be the same as those of the latter.
[34] The appellants say further that, at very least, the statement made by an accomplice, who if he had testified would have been the subject of a Vetrovec warning, cannot be admitted if he cannot be cross-examined. Roman Narwal was, by virtue of his admitted participation in criminal activity, a witness who would have necessitated the warning. But it is well recognized that the central evidence of one unsavoury witness, in this case Singh, can be corroborated by the evidence of another witness whose character gives rise to similar concerns: R. v. Illes, 2007 BCCA 125, 217 C.C.C. (3d) 529 at paras. 30-31, quoting from R. v. Pollock (2004), 187 C.C.C. (3d) 213 (Ont. C.A.). Where, as here, there can be no suggestion of collaboration, the corroboration in the evidence of two such witnesses can be strong and reliable.
[35] The appellants then say their proposition is sound because the principled approach to hearsay has not been held to extend the evidentiary purpose of the admission of a statement beyond traditional limitations. They cite in particular the decision of the Ontario Court of Appeal in R. v. C.(B.) (1993), 80 C.C.C. (3d) 467, where, in a joint trial for sexual assault, one accused had given a statement which he recanted at trial, and the judge was held to have erred in relying on the truth of its contents to convict the other accused. The following was said, at 476:
The new approach emphasizes necessity and reliability as well as fairness to the accused. Assuming such evidence could be shown to be necessary, which is doubtful in the present case since the Crown could have severed the charges against the two young offenders and made K. a compellable witness against B., it is obvious that the out-of-court statement of one accused implicating another is not reliable. An accused could have many personal reasons for wanting to implicate another, particularly when he is first arrested. Therefore, such a statement must be tested through cross-examination and should not be admitted as a hearsay exception unless in compliance with the principles set forth in R. v. B.(K.G.), supra.
[36] However, as I have indicated above, B.(K.G.), actually stands as an extension of the evidentiary purpose to which a recanted statement may be put, based on the principled approach to hearsay.
[37] Ultimately, the appellants contend that if, applying the principled approach to hearsay, the statement made in this case is admissible to prove the identity of the two accused, the rule of evidence governing the admissibility of statements of that kind as being evidence only against the declarant in joint trials can no longer stand. The appellants say undermining that rule offends the principle articulated in the Supreme Court's recent decision in Couture.
[38] In Couture, the Supreme Court decided that the rule of evidence that precludes one spouse from being compelled to testify against another in a criminal proceeding extends to statements made to police by one spouse against the other such that they are not admissible under the principled approach to hearsay. Prior to their marriage, the accused made statements to a woman, who later became his wife, whereby he confessed to having committed two murders. They subsequently became estranged. In two recorded statements, she told the police what he had said, and he was then charged. At his trial, while it was accepted his wife, with whom he had reconciled, was not a compellable witness, the statements were admitted as necessary and reliable. The judge considered the admissibility of the statements was governed by R. v. Hawkins, [1996] 3 S.C.R. 1043, where similar considerations arose. The accused was convicted. This Court set aside the convictions and its decision was upheld by the Supreme Court. There the majority took the view Hawkins was confined to a particular factual situation and did not apply. The statements were held not to be admissible in Couture because their admission would have undermined the spousal incompetency rule and its underlying rationales.
[39] The appellants rely in particular on the following statement from Couture:
[54] ... I agree rather with Mr. Couture that the approach advocated by the Crown would represent a drastic change in the role played by the spouse in criminal law trials, a result which, in my view, does not accord with this Court's decision in Hawkins to leave any substantial reform of the rule to Parliament. Further, this analytical approach would not be consistent with this Court's jurisprudence on the principled approach to the hearsay rule. I will explain.
[55] Unless there is good reason to modify an established common law rule, the modern approach to hearsay should be applied in a manner which preserves and reinforces the integrity of the traditional rules of evidence. This overarching principle was expressly reiterated by Lamer C.J.C. and Iacobucci J. in Hawkins in their general discussion of the principled approach (para. 69). The spousal incompetency rule was reaffirmed in Hawkins. The Court was unanimous in finding that any substantial reform of the rule was a matter better left for Parliament. Consequently, it is one of those traditional rules of evidence that should not be undermined by the application of the principled exception to hearsay.
[40] The appellants say the rule of evidence governing the admissibility of the statement of a co-accused in a joint trial is a traditional rule that is not to be undermined by the application of the principled approach to hearsay; the traditional rule must be preserved. They say it will be rendered meaningless if Roman Narwal's statement is admissible because there is no difference in principle between the statement of an accomplice tried separately and a co-accused tried jointly where neither can be cross-examined.
[41] The appellants contend essentially the same can be said about the one recognized exception to the preclusion of the admission of the statements of co-accused against each other in a joint trial. The co-conspirator exception to the inadmissibility of hearsay was most recently considered by the Supreme Court in R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358. Where co-accused charged in a conspiracy are jointly tried, the exception permits a statement by one in furtherance of the common design to be admitted against the other when certain criteria are met because it is accepted there are sufficient circumstantial guarantees of trustworthiness to permit evidence of that kind to be received: Mapara at para. 27.
[42] As Couture dealt with spousal competence, I have difficulty accepting the suggestion that what was said in that case forecloses the modification of traditional reliability based rules governing the admissibility of hearsay. Khan was itself a decision that changed the traditional rule of hearsay in criminal cases and, again, as I have said, B.(K.G.) modified the orthodox rule that precluded a prior inconsistent statement from being used only to impeach the declarant's credibility. The concern in those cases was the reliability of the impugned evidence, as it was in Smith, Starr, and Khelawon. The concern in Couture was the policy that underlies the competency of one spouse to testify against another. In my view, whether and to what extent the principled approach to hearsay may affect the traditional rules governing the admissibility of hearsay where the participants in a crime are tried jointly remains an open question.
[43] It is not, however, necessary to consider that question here because this case is not concerned with the rules of evidence governing joint trials. I do not accept that the admission of the statement of an accomplice tried separately is governed by the rule of evidence that precludes the statement of one co-accused being admitted as evidence against another in a joint trial notwithstanding the principled parallel the appellants maintain exists. The traditional rule of evidence governing the statement of a co-accused in a joint trial and the co-conspirator exception to that rule are not engaged by the present case.
[44] There simply is no rule of evidence that precludes the admission of the statement of an accomplice who is tried separately. Nor does it appear to me there is any sound basis upon which a preclusive exception to the principled approach to hearsay should be created. The principled approach has been developed as a flexible approach not to be impaired by rigid, preconceived notions of reliability.
[45] It is entirely open to the Crown to decide whether the participants in a crime are tried jointly or separately. If the evidence of one participant is required to convict another, the Crown may obtain the evidence by conducting separate trials where the evidence could not be obtained in a joint trial. The Crown is entitled to achieve in one way what it could not achieve in another. There is no principle that precludes the Crown from proceeding as it sees fit in this regard and no rule that restricts its access to the evidence: R. v. Crooks (1982), 2 C.C.C. (3d) 57 (Ont. H.C.), aff'd (1982), 2 C.C.C. (3d) 57 at 64n (Ont. C.A.). An accomplice who is separately tried is a witness in the trial of another participant in the crime like any other witness. I see no reason why, under the principled approach, a statement given to the police by an accomplice should be any less admissible for the truth of its content than a statement given by any other witness where the requirements of necessity and reliability are established. What is, of course, of paramount importance is that the requisite threshold of reliability be clearly met.
[46] Roman Narwal was in law a competent witness. Once he refused to testify, it was necessary to adduce his statement to the police officer if the value of his evidence was not to be lost. The indicia of reliability in the circumstances under which the statement was made were, in my view, particularly compelling. What the appellants advance as the principal reason the statement of an accomplice is inherently unreliable has no application here. Narwal did not attempt to deflect responsibility from himself to the other participants in the crime. He did minimize the incident in terms of the conduct to which Singh had been subjected, but not in a way that suggested an involvement on the part of the other participants that was any greater than his own. His purpose was to put the police right about Singh and the reason he had been "grabbed". In so doing, Narwal implicated himself. The appellants' other reasons why the statement was unreliable (the fact that Narwal was an experienced criminal and was a target of police investigation at the time of the statement) are outweighed by other indicia of reliability.
[47] His statement was a voluntary confession which he was told could be used against him, and it was made after he had consulted counsel. Further, and as the judge said, most importantly, he had no apparent motive to lie about the identity of the other participants. While the appellants maintain that, without the opportunity to cross-examine Narwal, they were denied the ability to challenge the truth of his statement, they do not point to anything that could have been put to him that is inconsistent with their having been participants in the crime.
[48] It follows that I would not accede to this ground of appeal.
Randy Naicker's Case on a Misapprehension of Evidence
[49] The appellant Naicker contends that a misapprehension of one aspect of the evidence led to an unreasonable finding that he was guilty of the offences with which he was convicted. He maintains there was almost no independent evidence to corroborate the unreliable testimony of Singh implicating him in the crime. This is said to be so because, contrary to what the judge said, Roman Narwal's statement did not implicate Naicker; it did no more than implicate someone named "Randy" as well as Harpreet Narwal and Roman Narwal himself. Emphasis is placed on evidence that established the apartment where Singh was held was rented to Randeep (or Randy) Bhatee and the fact what Narwal said was only that they took Singh to "Randy's place" and that "Randy" was there.
[50] The argument that Narwal did not implicate Naicker directly was made at trial. It may well be that Narwal's statement would not of itself establish that the "Randy" he spoke of was Randy Naicker, but there is other evidence that provides an ample basis on which it could be concluded that it was in fact Naicker who participated in the crime.
[51] Singh gave direct evidence identifying Naicker as one of the participants. He knew who he was and was able to describe him to the police, having regard for his size, ethnicity, and extensive tattoo markings that he said he saw at the apartment. Singh's identification of Naicker was corroborated by Naicker's fingerprints and diet plan being found in the apartment, and the keys to the apartment being found in his pocket when he was arrested leaving the building. Narwal did not implicate Naicker directly but he did implicate someone named "Randy" and his statement corroborated most of Singh's account. Narwal's statement was in no way materially inconsistent with what Singh testified had happened. The statement was corroborative of Singh's account in which he identified Naicker.
[52] I do not consider the judge can be said to have misapprehended the fact that Narwal's statement did not implicate Naicker beyond implicating someone named "Randy". The conclusion that Naicker was a participant in the crime was, on all of the evidence, in no way unreasonable.
[53] The appellant contends the judge misapprehended aspects of the evidence that bore on his determination that cross-examination of Narwal would not likely have provided any evidence of assistance to the trier of fact. The judge said that Naicker, the Narwals, and Singh were associates in criminal activities. He also said Roman Narwal would not "rat" on his associates, namely the two accused, which was revealed when he made his statement and would not say who Randy was upon learning the police had a "different" Randy in custody. The appellant says there is no evidence that he, the Narwals, and Singh were engaged in criminal activities together and the evidence is that Roman Narwal did not know who the police had in custody other than someone named "Randy".
[54] I have difficulty seeing anything materially wrong with the judge's understanding of the evidence in this regard, but, in any event, he had ample reason to consider Roman Narwal would not say more than he had to incriminate his associates. Narwal did say he was not a "rat" when he was asked and refused to further identify the "Randy" of which he was speaking. The interview the police officer conducted concluded with Narwal saying he would deny ever speaking to the police if he were made to testify.
[55] I do not accept that any case has been made on this appeal based on a misapprehension of the evidence or an unjust verdict and I would not accede to this ground of appeal.
Disposition
[56] It follows that I would dismiss the appeal.
“The Honourable Mr. Justice Lowry”
I agree:
“The Honourable Mr. Justice Low”
I agree:
“The Honourable Mr. Justice Chiasson”