2004 BCSC 299 internet R. v. Malik and Bagri

Before: The Honourable Mr. Justice Josephson

Crown Application Regarding the Admissibility of the Witness’s Statements

There is a Publication Ban pursuant to s. 486(3) of the Criminal Code directing that the identity of a complainant or a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way.

Counsel for the Crown:

R.W. Cairns, Q.C.

A.M. Loyst

G. Matei

K. Andani

Counsel for the Defendant,

Ajaib Singh Bagri:

R.C.C. Peck, Q.C.

M. Code

M. Tammen

N. Harris

Counsel for the Defendant,

Ripudaman Singh Malik:

S.M. Coristine

Dates and Place of Hearing:

December 17-19, 2003

January 5-9, 12-16,

19-22, 2004

February 12-13, 16-18, 2004

Vancouver, B.C.

A. NATURE OF THE APPLICATION

[1] The witness (the “Witness”) is one of the Crown’s primary witnesses in its case against Mr. Bagri. While claiming little recall now, she provided numerous statements to C.S.I.S. and the R.C.M.P. from 1985 to 1998, many of which appear to implicate Mr. Bagri in the alleged offences. The Crown seeks to have a number of these statements declared admissible at trial for the truth of their contents.

B. THE ISSUES

[2] The issues are as follows:

1. What is the analytical framework for assessing admissibility?

2. Are the Witness’s statements admissible as meeting the test for threshold reliability under the principled approach to the rule against hearsay?

3. Are the Witness’s statements admissible as past recollection recorded?

C. THE FACTS

1. Background

[3] The Witness and Mr. Bagri are from the same village in India. A number of years older than the Witness, Mr. Bagri was a friend of the Witness’s brother. They met again in Canada at a family wedding in the early 1980s. While Mr. Bagri lived in Kamloops and the Witness in Vancouver, they maintained a social relationship with their families exchanging visits. Mr. Bagri also visited the Witness alone on trips to Vancouver, often using her telephone and her car.

[4] The Witness’s second cousin and that person’s two children died in the Air India crash.

2. Overview of the Witness’s contact with C.S.I.S. and the R.C.M.P.

[5] The Witness’s first contact with the police following the Air India/Narita incidents occurred in late 1985. C.S.I.S. surveillance had earlier established that on June 9, 1985, Talwinder Singh Parmar and an unidentified male had been picked up at Vancouver International Airport, and that the unidentified male had been dropped of at the Witness’s residence at approximately 11:00 p.m. that evening. On November 29, 1985, an R.C.M.P. constable questioned the Witness about the identity of that unidentified male. She informed him that it was Mr. Bagri. The Witness was re-interviewed by the R.C.M.P. in December 1985, at which time she told them that Mr. Bagri had visited her two weeks earlier.

[6] Willie Laurie (“Laurie”), an agent with C.S.I.S.’s counter-terrorism unit, approached the Witness in September 1987 with a view to gathering intelligence into the Khalistan movement. During the course of the ensuing interview, the Witness gave Laurie significant information inculpatory of Mr. Bagri, most notably, that he had come to her home late one evening just prior to the Air India/Narita incidents to borrow her vehicle to take bags to the airport. Laurie interviewed the Witness a further five times on behalf of C.S.I.S., the last being on April 24, 1989.

[7] Laurie rejoined the R.C.M.P. in 1990. On October 19, 1990, he met with the Witness to facilitate an introduction between her and Cpl. Rautio of the R.C.M.P. Much of the information she provided during this interview was consistent with what she had previously told Laurie. Cpl. Rautio returned with Cst. Blachford a few days later to continue the interview. On this occasion, the Witness changed her story for the first time, stating that Mr. Bagri had come to borrow her car after the Air India explosion but before the C.P. Air (Narita) incident.

[8] Cpl. Solvason and Sgt. Maile interviewed the Witness on June 21, 1991. Again, she provided information essentially consistent with that she had provided earlier, but reverted to her initial account of the timing of Mr. Bagri’s visit. Sgt. Maile re-interviewed the Witness on April 6, 1992 and again on May 11, 1992. During this latter interview, he obtained a written statement from the Witness generally consistent with what she had previously told Laurie.

[9] Cst. Blachford contacted the Witness by telephone in early June 1992 to arrange a meeting to review the statement she had provided Sgt. Maile. However, she refused. The Witness had no further contact with the R.C.M.P. until December 6, 1996 when she was interviewed by Cpl. Best. She attended at R.C.M.P. headquarters for a subsequent interview on December 11, which was audiotaped and surreptitiously recorded on video. During this interview, she was taken through her May 1992 statement to Sgt. Maile. While confirming the benign information it contained, she professed not to recall much of that which incriminated Mr. Bagri.

[10] The Witness was interviewed again at R.C.M.P. headquarters on January 9, 1997. A number of officers, including Laurie and Cpl. Best, participated in the interview which lasted over five hours. At its conclusion, the Witness signed a brief statement in which she acknowledged, inter alia, that the statements she had provided to Laurie during their numerous interviews were true and accurate, that Mr. Bagri had attended at her home to borrow her car the night before the Air India crash, and that Mr. Bagri had come to her house subsequent to the Air India crash and had told her that the secrets she knew could put him in trouble.

[11] The Witness met with Cpl. Best a further four times, the last time on November 25, 1998. They also spoke on the telephone a number of times. A constant theme throughout this period was the Witness’s stress and anxiety at being pressured by the police to recall events and at the prospect of being a witness at trial.

[12] At trial, the Witness professed a lack of recall with respect to most of her prior statements harmful to Mr. Bagri. After attempting unsuccessfully to refresh her memory, the Crown advanced an application for a declaration that the Witness was adverse pursuant to s. 9(1) of the Canada Evidence Act, R.S.C. 1985, c. C-5. That application was denied on the basis that her testimony did not amount to the positively harmful or damaging evidence that s. 9(1) was designed to neutralize: R. v. Malik and Bagri, 2004 BCSC 149. The Crown now seeks the admission of the following seven statements for the truth of their contents:

· September 10, 1987 statement to Laurie;

· October 19, 1990 statement to Laurie and Cpl. Rautio;

· October 22, 1990 statement to Cpl. Rautio and Cst. Blachford;

· June 21, 1991 statement to Sgt. Maile and Cpl. Solvason;

· May 11, 1992 statement to Sgt. Maile; and

· December 11, 1996 statement to Cpl. Best.

3. Circumstances Surrounding the Specific Statements for which the Crown seeks Admission

a. September 10, 1987 and September 24, 1987 Statements to Willie Laurie

i. The Interviews

[13] Laurie was a field officer with C.S.I.S.’s counter-terrorism unit. He had come across the Witness’s name and sought to interview her for intelligence purposes. He went alone and without prior notice to her residence on September 10, 1987. He identified himself to the Witness as an employee of the Solicitor General of Canada, and asked to speak with her about her knowledge of the Sikh community. The Witness replied that she had already spoken with the police and that she had nothing to say. Laurie responded that he was not a police officer and explained the differences between C.S.I.S. and the police to the Witness, the primary one being that he did not have the ability to command her attendance in court. He also told her that she could speak with him confidentially and that any information she provided would be forwarded to the government, not the police. The Witness allowed Laurie to enter and they went to her living room.

[14] Laurie began the interview by asking about the Sikh community and the discussions about Air India going on within it. He then spoke of the need to provide answers for the families of the victims of the disaster. This resulted in a large emotional response from the Witness and she began to relate details of a visit from Mr. Bagri. Laurie’s report of the interview records the following account:

Just prior to the Air India/Narita [redaction] violence, in fact the source believes it was the night before, BAGRI came to the source and asked for the use of her car. When the source refused, BAGRI said he just needed it to take himself and 2 UMs to the airport. The source still refused, saying that she needed her car. BAGRI then told the source that only the baggage was making the trip and that they (he and the UMs) would return her car. By this time the source was quite afraid of BAGRI and sensed his intentions and refused to give him her car. When the Air India Flt 182 crash occurred the source was shocked and she informed BAGRI that he was no longer welcomed at her home. Since that time BAGRI has returned twice. The first time he again asked for the use of her car, which she refused. On the second occasion BAGRI told the source that they (her and he) shared a couple of secrets and that if she told anyone “she knew what he would do”. The source is sure that he meant that he would kill her.

[15] In addition to the foregoing, Laurie’s report contains information regarding the Witness’s background, how she came to meet Mr. Bagri and her relationship with the Bagri family, how Mr. Bagri would use her telephone out of concern that his own was being monitored and how she had overheard him several times talking about violent acts. Paragraphs 8 and 9 of the report read:

After the Air India/Narita events, the source was visited by the RCMP on several occasions. She was asked about BAGRI and the BK, but her fear kept her from telling any of the aforementioned details to the police. In fact, the source expressed the conviction that she never would assist the police in any way because of the danger it would pose to herself and her two children.

At the end of the interview the source, who was visibly distraught said that she was certain that BAGRI and PARMAR had committed the murders of Air India and Narita. The source confronted Mrs. BAGRI one time and said the community all feel the BK did this thing and what did she (Mrs. BAGRI) have to say. Mrs. BAGRI told the source that after Operation Bluestar, Sikhs were warned not to use Government of India (GOI) airlines, busses and so on. Therefore, said Mrs. BAGRI to the source, if they chose to fly with Air India, it was their own fault if they got killed. The source, who has known Mrs. BAGRI for a long time, was astonished at her reply and found it very out of character. The source took the reply to the (sic) tantamount to an admission of guilt that BAGRI had been involved in the tragedy. The source no longer has contact with any of the BAGRIs but has constant fears that Ajaib will return to spoil her life which is under reconstruction.

[16] Laurie testified that he was rather startled by the Witness’s revelations, which came out quickly. The information she provided was new to him. He testified that at some point during the interview he indicated that he knew of Mr. Bagri and Mr. Parmar and that they were members of the Babbar Khalsa. However, he consciously avoided supplying the Witness with information since it would have been contrary to the intelligence gathering purpose of his visit to have done so. He did not ask her leading questions.

[17] Laurie described the Witness’s emotional state as varying significantly over the course of the interview. At the outset, she was very nervous. She was emotionally distraught in the middle of the interview while discussing the impact of the tragedy on the families of the victims, at one point crying heavily on the floor. He described the Witness as being visibly relieved by the end of the interview.

[18] The interview lasted for approximately two hours, ending with Laurie and the Witness discussing how a large weight had been lifted from her shoulders. The Witness agreed to be interviewed again.

[19] Laurie pre-arranged his September 27 interview with the Witness. His purpose in conducting this second interview was to assess the Witness’s credibility and to obtain more specific details regarding the information she had previously provided. The interview was again conducted in the Witness’s living room, and again Laurie attended alone. This interview lasted approximately one hour due to time constraints on the Witness’s part.

[20] Laurie testified that the Witness was initially reluctant to talk about Mr. Bagri’s visit because of its emotional impact on her. However, she proceeded to recount Mr. Bagri’s visit as follows:

… The source was asked to provide clarity to previously provided information that BAGRI has asked to borrow her car. The source said that BAGRI frequently borrowed her car between 1981 and 1985. He would travel to Vancouver on most weekends and use the source’s car as though it were his. The source was 100% certain that on the night prior to the Narita explosion, sometime after 2000 hours, BAGRI arrived alone at the source’s residence to borrow the source’s car. At this point in their relationship, the source was most antagonistic toward BAGRI because she had knowledge that he was involved in violent actions. The source was asked where BAGRI was going, to which he replied QUOTE the airport UNQUOTE. Once again the source asked where he was going, to which he advised nowhere. BAGRI explained that only the baggage was making the trip but that he would return her car. BAGRI and 2 unidentified males (ums) (who were not with him) were travelling to the airport. The source could not guess who the (ums) might be but thought BAGRI may have said they were from Toronto. The source refused BAGRI’s request for use of her car.

[21] The Witness told Laurie during this interview that Mr. Bagri often tried to impress her by making bragging statements, and once told her that his group (implying the Babbar Khalsa) could have anyone killed. He told her too that he had been involved in a plot to assassinate Rajiv Ghandi during a trip to the United States. The Witness also mentioned overhearing Mr. Bagri speak to someone named Malik while using the telephone at her house.

[22] As she had at the first interview, the Witness indicated that she would not cooperate with the police.

[23] Laurie testified that the Witness once again was nervous at the outset of the interview and became very emotional as the interview proceeded. She appeared to be feeling much better by the end since, in Laurie’s view, “she had got a weight off her shoulders”. He testified that the Witness demonstrated no reluctance in responding to his questions. He did not need to prompt her as she recounted the details, much the same as during the September 10 interview. Laurie testified that he did not raise his voice during the interview, nor did he threaten the Witness in any way. He did not supply her with information or suggest that she was obliged to cooperate with him.

[24] At trial, the Witness confirmed many insignificant details in her statements to Laurie. However, she could not recall those portions harmful to Mr. Bagri, testifying “I’m not saying that it’s not true but I don’t remember anything like that” when it was put to her. The Witness testified that she always spoke the truth when speaking with Laurie, with whom she developed a friendship, and that the events were fresh in her mind at the time of her interviews with him.

ii. Laurie’s Records of the Interviews

[25] Laurie did not take contemporaneous notes during his interviews with the Witness since he sought to keep their exchanges as natural as possible. Following the September 10 meeting, Laurie testified that he went around the corner in his vehicle and jotted down essential details so as to have as accurate an account as possible.

[26] He then returned to his office and prepared draft reports for C.S.I.S. headquarters. These reports included all details that were considered intelligence. He did not attempt to track the Witness’s language in his reports since they were prepared for intelligence, not evidentiary, purposes. Laurie testified that he completed his reports on the same afternoons that he interviewed the Witness, and that he believed them to be accurate.

[27] Laurie taped two of his numerous interviews with the Witness and used them to assist him in preparing his reports. He did not tape the first interview on September 10, and agreed that it was not possible to discern from his reports which of the other interviews were taped. These tapes and transcripts were destroyed.

b. October 19, 1990 Statement to Laurie and Cpl. Rautio

[28] Laurie rejoined the R.C.M.P. in 1990. To facilitate an introduction between the Witness and the R.C.M.P., he attended at her residence with Cpl. Rautio on October 19, 1990. They did not pre-arrange their visit with the Witness. Laurie testified that she was nervous and shocked to see them. Beyond this nervousness, however, she did not indicate that she did not wish to speak with the officers. Laurie introduced Cpl. Rautio to the Witness as a member of the R.C.M.P. and advised that he too was now a police officer with the R.C.M.P.

[29] The interview was conducted in the Witness’s living room. At her request, it was not taped. The Witness was not put under oath or cautioned with respect to perjury or obstruction of justice. Cpl. Rautio did most of the talking during the interview. Neither officer raised his voice with the Witness, nor did they threaten her.

[30] At the outset of the interview, the officers explained to the Witness the difference between C.S.I.S.’s intelligence gathering function and the R.C.M.P.’s investigatory role. Cpl. Rautio testified that he recalled Laurie explaining to the Witness that notwithstanding he had assured her that the information she provided him would remain confidential, the information had been passed to the R.C.M.P. The officers discussed with the Witness the importance of her information to the R.C.M.P.’s criminal investigation into the Air India/Narita incidents and how she might be required as a witness in any criminal proceedings that might arise therefrom. The Witness was strongly opposed to testifying in court and told the officers that she would commit suicide if made to testify, saying that she was afraid that Mr. Bagri would have her children killed.

[31] The interview lasted approximately one hour and was ended at the Witness’s request. She recounted much of the same information as she had previously provided Laurie. Cpl. Rautio testified that the Witness struck him as a talkative person and that he did not notice anything abnormal in her emotional reactions. Her answers came fairly quickly after any questions that were asked. He did not recall asking her leading questions since he was seeking a “pure version”. He also did not supply the Witness with information she had previously provided.

[32] Cpl. Rautio testified that he took contemporaneous notes in a spiral-ringed notebook and was satisfied as to their accuracy. Laurie took no notes but reviewed Cpl. Rautio’s notes following the interview and, satisfied they were accurate, initialled and signed them. Cpl. Rautio testified that later at his office he made a second set of notes in a small notebook which summarized his contemporaneous notes.

[33] The Witness testified that she recalled an interview with Laurie and Cpl. Rautio but that she had no recollection of the content of their conversation. Her memory was not refreshed when the statements were read to her.

c. October 22, 1990 Statement to Cpl. Rautio and Cst. Blachford

[34] Cpl. Rautio returned to the Witness’s residence with Cst. Blachford on October 22, 1990 to follow up on the October 19 interview that had been cut short. There was no discussion at the outset of the interview about taping it. The Witness was not placed under oath nor cautioned about perjury or obstruction of justice. She was also not told that the officers’ notes themselves could be used in evidence at trial. The interview was conducted in the Witness’s living room.

[35] Prior to this interview, the Witness had maintained that Mr. Bagri’s visit had occurred before the Air India incident. Here, she treated the C.P. Air (Narita) and Air India incidents as having occurred at different times. She told the officers that Mr. Bagri had come to borrow her car the evening before the C.P. Air incident but after the Air India crash. Although Cst. Rautio explained to the Witness that the two incidents had occurred at approximately the same time, she continued to maintain that Mr. Bagri’s visit occurred after the Air India crash.

[36] Also of concern to the officers was the fact that the Witness had indicated that Laurie had told her that C.S.I.S. surveillance had established that it was Mr. Parmar who had dropped off Mr. Bagri at her residence the night he came to borrow her car. Cpl. Rautio testified that he was surprised Laurie would have mentioned something of this nature to the Witness, and that it raised concerns about what she knew independently as opposed to what she had been told. The Witness also told the officers that “Willy told [her spouse] everything”. Cpl. Rautio took this to mean a passage of information from Laurie to her spouse, which again raised concerns about the independence of the Witness’s recollection.

[37] Both officers testified that they did not raise their voices with the Witness or speak with her in an angry fashion. They did not accuse her of lying. Cpl. Rautio testified that the Witness appeared to be speaking and answering their questions freely. She did not appear to have any difficulty recalling events. She was cordial and did not appear overly nervous, except when questioned about whether she had been having an affair with Mr. Bagri, a proposition she denied. Both Cpl. Rautio and Cst. Blachford took contemporaneous notes of the interview.

[38] The Witness did not recall this interview when first questioned about it at trial. However, she recalled the interview when asked about it again on the voir dire. She did not recall the substance of the interview but testified that “every time when somebody tried to talk to me I tell them the truth at that time what I think”.

d. June 21, 1991 Statement to Sgt. Maile and Cpl. Solvason

[39] Cpl. Solvason and Sgt. Maile were involved in source development for the Air India investigation, and became aware of the Witness as a possible witness in 1991. They were unaware that she had been interviewed by Cpl. Rautio and Cst. Blachford. Sgt. Maile, however, knew that Laurie had interviewed the Witness and had provided some information to the R.C.M.P.

[40] The officers attended at the Witness’s residence on June 20, 1991, and identified themselves as members of the R.C.M.P. The Witness indicated that she had a medical appointment so they arranged to return the following day. Although she was not enthusiastic about speaking with them, she was cooperative.

[41] The officers re-attended at the Witness’s residence on June 21. The interview was conducted in the front basement area of the Witness’s house with the three participants standing throughout. The Witness objected to the interview being taped.

[42] The officers told the Witness that they were investigating the Air India disaster, and wished to know what she knew about it and about her association with Mr. Bagri. The information she provided the officers in response was generally consistent with her previous statements, though the timing of Mr. Bagri’s visit appeared to revert back to before the Air India incident. Cpl. Solvason testified that the information the Witness was providing came as a surprise to them.

[43] Cpl. Solvason testified that the Witness was very forthright, casual and cooperative. She did not appear to have any memory problems. The officers did not ask her questions that suggested an answer or invite her to agree with information put to her. They did not pressure the Witness in any way.

[44] The officers asked whether the Witness would provide a written statement, explaining that one was necessary to further the investigation and because she would be called as a witness. The Witness was adamant that she would not be a witness and indicated that she had been given assurances by Laurie that she would never have to testify. She was fearful and indicated that she wished to speak with her common law husband before deciding whether to provide a statement.

[45] Both officers took contemporaneous notes of the interview and testified that they attempted to accurately record what the Witness was recounting. Cpl. Solvason prepared a continuation report immediately upon returning to the office using his notes and his recollection of the interview at the time.

[46] The Witness initially testified that she recalled this interview with Cpl. Solvason and Sgt. Maile, but on the following day of her evidence professed not to recall it. She testified that she always spoke the truth when dealing with the police.

e. May 11, 1992 Statement to Sgt. Maile

[47] Sgt. Maile became involved in other matters following the June 1991 interview with the Witness, as a result of which there was some delay before he revisited the issue. After a number of separate interviews with the Witness and her spouse in the spring of 1992 for the purpose of persuading the Witness to provide a written statement, Sgt. Maile attended at her residence on May 11, 1992. According to his initial recollection, Cpl. Solvason accompanied him. However, Cpl. Solvason testified that he did not recall being present for this interview and Sgt. Maile conceded later in his testimony that it was possible that he had attended alone. He left the interview with a hand-written statement initialled and signed by the Witness. Their accounts of the circumstances in which it was made differ significantly. Other than the statement itself, Sgt. Maile took no notes with respect to this interview.

[48] The written statement describes the Witness’s relationship with Mr. Bagri and his family, his visit to borrow her vehicle and its timing the evening before she heard about the C.P. Air incident on the radio, her conversation with Mrs. Bagri and a subsequent visit from Mr. Bagri during which he gave her a letter about her knowing secrets that could put him in trouble.

[49] Sgt. Maile testified that he did not take any prepared documents or notes with him to the interview, other than a pad of paper, and that he wrote out the Witness’s statement on the coffee table in front of her as she related the events to him. He attempted to be as accurate as possible, using her words and grammar. He gave the Witness the opportunity to review the statement, which she appeared to do. Sgt. Maile said he inquired whether she was having any difficulty reading his handwriting, to which she responded she was not. She did not make any corrections, and signed the statement. After the statement was completed, Sgt. Maile and the Witness spoke outside her residence about her safety concerns. He believes he was at the Witness’s residence for approximately 40 minutes. He left feeling that his relationship with the Witness at the conclusion of the interview was good.

[50] The Witness testified that Sgt. Maile had brought a prepared statement with him when he came to her house on May 11 and forced her to sign it, threatening her with jail if she refused. She said that Sgt. Maile told her that he had obtained the information it contained from Laurie. She described him as rude and said that she threatened suicide if forced to sign the statement. Sgt. Maile denied these allegations.

[51] When asked at trial whether the information in the statement was true, the Witness replied that “it could be true at that time but I don’t remember now”.

f. December 11, 1996 Statement to Cpl. Best

[52] One of Cpl. Best’s duties upon being assigned to the Air India Task Force in 1996 was to meet and interview the Witness. He met with her at her residence on December 6, 1996, and told her that he wished to go over her statement to Sgt. Maile. They arranged to meet next at R.C.M.P. headquarters on December 11, 1996.

[53] The Witness attended at the R.C.M.P. headquarters and first met with Inspector Van de Walle. He gave her a general overview of the case and advised that she would be a witness on the basis of the statement she had given Sgt. Maile. During this discussion, the Witness expressed a willingness to cooperate and to assist in bringing the culprits of the Air India disaster to justice. Inspector Van de Walle asked for and obtained her permission for the interview to be recorded.

[54] After Van de Walle left, Cpl. Best proceeded with the interview. The Witness was not aware that she was being videotaped during the interview. Cpl. Best had no specific recollection of what conversation preceded the video recorded portion of the interview but believed it was simply general dialogue. He took the Witness through her May 1992 statement to Sgt. Maile. Although she told Cpl. Best that certain portions of the statement were incorrect, her primary response was “I’m not saying what’s written is wrong but I don’t remember that”. The transcript of this interview was tendered on the voir dire.

D. WHAT IS THE CORRECT ANALYTICAL FRAMEWORK FOR ASSESSING ADMISSIBILITY ON THE FACTS OF THIS CASE?

1. Positions of the Parties

a. Position of the Crown

[55] The Crown submits that the Supreme Court of Canada’s judgments in R. v. Khan (1990), 59 C.C.C. (3d) 92 (“Khan”), and R. v. Smith (1992), 75 C.C.C. (3d) 257 (“Smith”), set out the appropriate analytical framework for assessing the admissibility of the Witness’s out-of-court statements. The more stringent admissibility standards applicable to prior inconsistent statements set out in R. v. K.G.B. (1993), 79 C.C.C. (3d) 257 (“KGB”), do not apply in the circumstances of this case.

[56] The Crown submits that the heightened reliability threshold mandated by the Supreme Court in KGB with respect to prior inconsistent statements is justified since the court is faced with two conflicting versions of events. The Witness, however, did not positively advance a contradictory account at trial. Instead, she professed a lack of recollection of the substance of her earlier statements and also indicated that she was telling the truth when she made those statements. Since there is only one version of events, the Court is not forced to engage in a comparative analysis. Citing R. v. Fleet (2001), 163 C.C.C. (3d) 177 (N.S.C.A.), the Crown submits that the Witness’s lack of recall renders her functionally equivalent to an unavailable witness and that Khan/Smith, rather than KGB, is the appropriate paradigm.

b. Position of Mr. Bagri

[57] With the exception of the Witness’s December 1996 videotaped statement to Cpl. Best, Mr. Bagri concedes the issue of necessity with respect to the Witness’s statements.

[58] Mr. Bagri’s response to the Crown’s submissions on the appropriate analytical framework is twofold. Firstly, he submits that the Crown has incorrectly characterized the Witness as a witness with a complete lack of recollection. Rather, during her evidence in-chief, she provided clear denials and a positive contradictory account with respect to the core story. When questioned whether Mr. Bagri said anything to her about airplanes or airports on the night he came to borrow her vehicle, she responded “absolutely not”, though she went on to state that it was possible he had but that she could not recall. The Witness denied being afraid of Mr. Bagri at the time of the visit and denied having had any thoughts about his activities at the time. She also flatly denied that Mr. Bagri had subsequently said anything she perceived as a threat or that the Air India/Narita incidents had affected her relationship with him. She provided a slightly different account of her conversation with Mrs. Bagri and testified that she did not form any conclusion about who was responsible for Air India based on that conversation. Mr. Bagri submits that the foregoing constitutes a clear denial of the core account that the Crown seeks to establish through her out-of-court statements.

[59] Even if the Crown’s characterization of the Witness’s evidence is accepted, Mr. Bagri submits that a feigned lack of recollection constitutes a positive contradictory account as a matter of law in any event (R. v. McInroy and Rouse (1978), 42 C.C.C. (2d) 481 (S.C.C.)).

[60] Mr. Bagri’s second response is that there is no independent Khan/Smith basis for the substantive admissibility of a prior inconsistent statement outside of KGB. KGB, he submits, constitutes a particular application or refinement of the Khan/Smith principles to the specific context and hearsay dangers of prior inconsistent statements. The Crown’s submission that KGB does not apply to a forgetful witness is simply foreclosed as a matter of law because much of the appellate jurisprudence following KGB deals with witnesses claiming memory loss. Moreover, Mr. Bagri submits that there are sound policy reasons why a higher standard of reliability is required where a witness is available to testify. In a Khan/Smith situation, there is no concern or inference that the witness would not have adopted the statement had they been available to testify. In contrast, however, the higher KGB standard is necessary where the witness is available to testify but refuses or fails to adopt the prior statement.

2. Analysis

a. The Development of the Principled Approach to Hearsay

[61] Hearsay evidence was traditionally inadmissible at trial unless it fit within a number of rigid exceptions developed at common law. Commencing with Khan and Smith, this categorized approach began to erode. In its place, the Supreme Court of Canada espoused a principled approach to assessing the substantive admissibility of hearsay based on the concepts of necessity and reliability. In establishing this modern approach to admissibility, the Supreme Court of Canada has consistently stressed that both necessity and reliability must be interpreted flexibly with a particular emphasis on the circumstances of each case. The rigidity of the former regime governing the admissibility of hearsay is to be avoided under this new principled analysis. [See: Khan, supra; Smith, supra; KGB, supra, at 291; R. v. U.(F.J.) (1995), 101 C.C.C. (3d) 97 at 114 (S.C.C.)]

[62] In Khan and Smith, the Supreme Court dealt with the admissibility of out-of-court statements made by unavailable witnesses. In Khan the statement had been made by a very young child and in Smith, by the deceased victim. Accordingly, “inconsistency” between an out-of-court statement and a witness’s testimony at trial was not a consideration. As will be discussed below, the meaning of “inconsistency” and its effect on the principled analysis regarding the substantive admissibility of hearsay was placed squarely at issue on this voir dire.

[63] In KGB, the Supreme Court of Canada further expanded the principled approach to hearsay evidence to circumstances involving prior inconsistent statements by a witness called to testify at trial. Prior to this decision, the only permissible use for such statements was in relation to credibility.

[64] In KGB, three witnesses called by the Crown refused to adopt earlier statements to the police in which they stated that the accused had admitted his responsibility for the death of the victim. Under cross-examination by the Crown pursuant to s. 9 of the Canada Evidence Act, R.S.C. 1985, c. C-5, the witnesses admitted making the statements to the police but said that they had lied and that the accused had not in fact made the incriminating statements. The witnesses claimed to have either forgotten what had occurred when the accused was alleged to have made the admissions or to not to have heard him. Applying the traditional rule regarding prior inconsistent statements, the trial judge held that the prior statements could only be used with respect to the credibility of the witnesses and could not be tendered for the truth of their contents.

[65] The Supreme Court of Canada expanded upon the principles developed in Khan and Smith and set out a framework of admissibility for prior inconsistent statements based on the test of reliability and necessity. On the issue of reliability, Lamer C.J.C. stated at pp. 287-288:

The reliability of prior inconsistent statements is clearly a key concern for law reformers and courts which have reformed the orthodox rule, and, as I have outlined, this concern is centered on the hearsay dangers: the absence of an oath, presence, and contemporaneous cross-examination. The reliability concern is sharpened in the case of prior inconsistent statements because the trier of fact is asked to choose between two statements from the same witness, as opposed to other forms of hearsay in which only one account from the declarant is tendered. In other words, the focus of the inquiry in the case of prior inconsistent statements is on the comparative reliability of the prior statement and the testimony offered at trial, and so additional indicia and guarantees of reliability to those outlined in Khan and Smith must be secured in order to bring the prior statement to a comparable standard of reliability before such statements are admitted as substantive evidence.

[66] He summarized the approach to assessing reliability at p. 294:

Therefore, the requirement of reliability will be satisfied when the circumstances in which the prior statement was made provide sufficient guarantees of its trustworthiness with respect to the two hearsay dangers a reformed rule can realistically address: if (i) the statement is made under oath or solemn affirmation following a warning as to the existence of sanctions and the significance of the oath or affirmation, (ii) the statement is videotaped in its entirety, and (iii) the opposing party, whether the Crown or the defence, has a full opportunity to cross-examine the witness respecting the statement, there will be sufficient circumstantial guarantees of reliability to allow the jury to make substantive use of the statement. Alternatively, other circumstantial guarantees of reliability may suffice to render such statements substantively admissible, provided that the judge is satisfied that the circumstances provide adequate assurances of reliability in place of those which the hearsay rule traditionally requires.

b. Analytical framework for assessing admissibility on the facts of this case

[67] The Crown urges a Khan/Smith analysis of the statements in issue; the defence, a KGB analysis. This distinction is significant as KGB applies a more stringent set of criteria in the latter circumstance.

[68] In KGB, the Supreme Court held that the lack of contemporaneous cross-examination was the most important of the hearsay dangers, though also the most easily remedied by cross-examination at trial. While the lack of effective cross-examination is not a barrier to substantive admissibility, it would appear that the other indicia of reliability take on greater significance in that situation. [See: KGB, supra, at 294; R. v. Conway (1997), 121 CCC (3d) 397 at 410 (Ont. C.A.)]

[69] The Crown relies heavily on the Nova Scotia Court of Appeal’s decision in R. v. Fleet, supra, to support the proposition that KGB does not apply to this case. In Fleet, a Crown witness testified that he had no recollection of events in relation to a motor vehicle accident which had been provided in a statement to the police. The witness’s memory loss was attributed to him subsequently being involved in a car accident which had left him with memory problems. An application by the Crown to cross-examine the witness pursuant to s. 9(2) of the Canada Evidence Act was denied as the trial judge ruled that there had been no “inconsistency” between the statement to police and the trial testimony. I pause to note that it appears that the explanation for the memory loss was accepted, as a determination that the memory loss was feigned would likely have resulted in a finding of inconsistency and a granting of the s. 9(2) application. [See: R. v. McInroy and Rouse, supra; R. v. Malik & Bagri, 2004 BCSC 149.]

[70] The Nova Scotia Court of Appeal held that since there was no “inconsistency” between the witness’s trial evidence and his prior statement, the principles outlined in KGB were not applicable. Rather, the substantive admissibility of the prior statement was to be determined on the basis of Khan and Smith, with the attendant focus on the hearsay dangers of perception, memory and credibility. In such situations, the absence of cross-examination generally goes to the ultimate weight to be attributed to the evidence, not to threshold admissibility. Despite the limits on a meaningful cross-examination, the Court considered a number of factors going to threshold reliability and upheld the trial judge’s decision to admit the prior statement.

[71] In contrast to Fleet are a series of cases in which courts have applied the analytical framework set out in KGB in circumstances where the witness is available to testify, but refuses to adopt the prior statements, often citing a lack of memory. None of these cases make reference to a legitimate explanation for the memory loss as in Fleet. It is implied that the witness is feigning a memory loss out of fear or favour in relation to the accused. [See: R. v. Conway, supra; R. v. Savoy, [2000] B.C.J. No. 551 (B.C.S.C.); R. v. Diu (2000), 144 C.C.C. (3d) 481 (Ont. C.A.); R. v. Tat (1997), 117 C.C.C. (3d) 481 (Ont. C.A.)]

c. Conclusion

[72] As outlined above, Mr. Bagri submits that KGB applies to the circumstances of this case either on the basis that the Witness testified during examination in-chief to a different version of the core events from that contained in her prior statements, or because she was feigning a memory loss regarding those statements.

[73] With respect to whether the Witness testified to a different version of events, I am of the view that I must look at the entirety of her evidence at trial and on the voir dire in making that assessment. When the Crown put one suggestion to her regarding the core event, she responded, “Absolutely not”. To another, she also responded, “Absolutely not”, but when asked further whether she was sure, testified “Yes, it’s possible, but I don’t remember …”. It then became clear on the voir dire that the Witness was professing an almost complete lack of recall regarding the core story sought to be introduced by the Crown. While she did provide a sanitized version of the core story when initially questioned by the Crown in-chief, she quickly adopted a position of lack of memory once her prior statements were put to her. This was not another version of events. Were it otherwise, the Crown would not have been stifled at the “positive harm” stage of the analysis in its earlier application to have her declared an adverse witness. [R. v. Malik and Bagri, 2004 BCSC 149]

[74] The weight of authority is to the effect that where a witness feigns a memory loss, a KGB analysis is conducted. If there is no adequate substitute for contemporaneous cross-examination, one of the three reliability criteria, it has been held generally that threshold reliability is not established.

[75] In other words, feigned memory loss has been analyzed not as akin to an unavailable or genuinely forgetful witness, but to a witness offering a different version of events at trial than in a prior statement. This apparent sharp fork at the beginning of the analysis road between the KGB and Khan/Smith scenarios is troublesome for these reasons:

1. A witness who, claiming fear from threats, feigns lack of recall, shares many similarities with a witness who becomes unavailable or is genuinely forgetful. The evidence is lost to the trial process in a similar fashion. This case aside, one might ask why a prior statement from a witness feigning lack of recall in such circumstances must be analyzed in such a contrasting and more rigorous fashion from one where the witness has become unavailable or is genuinely forgetful. Determining whether memory loss is actual or feigned can be a highly subjective process. The circumstances in which the prior statement was made, the focus of the reliability concern, have not changed.

2. As held in KGB, the reliability concern is “sharpened” where the trier of fact is asked to choose between two statements from the same witness. When the witness offers one version in the statement and another at trial, the focus of the enquiry is their comparative reliability, thus requiring additional guarantees of reliability to those in Khan and Smith. Here, only one version of the core events has been offered by the witness, a version which the witness claims not to recall. Thus, the justification for the “sharpened” reliability concern is not as strong.

3. As held in KGB at p. 293, while lack of contemporaneous cross-examination is the most important of the hearsay dangers, it is also the most easily remedied “in the case of prior inconsistent statements”. As made clear at p. 288, the words “prior inconsistent statement” are used in the context of there being two different versions of events. Thus, for a witness feigning memory loss, this important KGB safeguard is lost, as it is with an unavailable or genuinely forgetful witness.

4. A witness feigning lack of recall could hold the trial process hostage. Though it may be regarded as an inconsistency for the purpose of s. 9(2) of the Canada Evidence Act, if such evidence is regarded as comparable to a witness providing two different versions of events, thus sharpening reliability concerns and requiring cross-examination, that prior statement would rarely be admitted. There cannot be effective cross-examination by the Crown or defence where the witness falsely professes a lack of recall of the one and only version offered.

[76] However, as with an unavailable or forgetful witness, I recognize that if a prior statement is admitted for its truth, the defence cannot conduct a full and effective cross-examination regarding the reliability of the details contained in that statement.

[77] In the context of the circumstances of this case, that loss, while real and significant, may be of less significance than in others. The reliability concern is not “sharpened” as it is with two statements offering different versions of events. Unlike with an unavailable witness, there remains an ability, though admittedly limited, to cross-examine the Witness on matters reflecting indirectly on the reliability of her prior statement, such as credibility, motive to fabricate and possible contamination or collusion.

[78] Ultimately, the issue is whether the statement was “made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken” (Smith, supra, at p. 270; see also R. v. Starr (2000), 147 C.C.C. (3d) 449 at 534 (S.C.C.)). KGB sets out an initial somewhat mechanistic approach to the search for substitute protections for the inherent dangers of hearsay evidence. If met, presumptive admissibility may result. If not met, in many cases that is the end of the analysis as threshold reliability cannot otherwise be established in the circumstances.

[79] Keeping in mind that there may be instances where the KGB requirements are met even with a classic Khan/Smith scenario, KGB would be a useful first stopping point on any application to admit a hearsay statement for its truth where the classic common law exceptions to the rule are not applicable. In approaching the subject of substitute indicia of trustworthiness, Lamer C.J.C. stated at p. 288 of KGB that we must bear in mind “that the question of reliability is a matter for the trial judge, to be decided on the particular circumstances of the case”. In many cases, as here, it will be readily apparent that the KGB safeguards are not present. Depending on the circumstances in a given case, that may rightly end the analysis. In other cases, a careful examination of the circumstances in which the statement was made may nonetheless be capable of establishing threshold reliability on a balance of probabilities.

E. DO THE WITNESS’S STATEMENTS MEET THE TEST OF THRESHOLD RELIABILITY?

1. Positions of the Parties
a. Position of the Crown

[80] The Crown emphasizes that the Court should not take an overly mechanistic approach to reliability, and should instead assess it having regard to the hearsay dangers posed by perception, memory and credibility as set out in Khan and Smith. With respect to perception, the Crown submits that the Witness’s core evidence relates to a simple conversation she had with an individual with whom she had had a long acquaintance. It is not a circumstance that poses concerns with respect to perception, unlike, for example, eyewitness identification.

[81] While acknowledging that memory is often a valid concern in assessing reliability, the Crown submits that it is simply not a factor in the present case notwithstanding the passage of time. Not only was the core conversation a simple event, but it was an event of incredible significance to the Witness. The Crown submits that it is inconceivable that the Witness could ever forget her conversation with Mr. Bagri, having concluded on the basis of the timing of his visit and subsequent events that he was involved in the murder of 331 people, including members of her own family.

[82] Finally, with respect to credibility, the Crown submits that there has never been any suggestion that the Witness lied when speaking with Laurie and the police, except when deliberately trying to devalue herself as a witness. She was never cross-examined about whether she lied, nor was she ever questioned about motives to lie.

[83] The Crown therefore submits that given the totality of unique circumstances in this case, there are sufficient circumstantial guarantees of reliability surrounding the Witness’s statements to meet threshold reliability under Khan/Smith.

[84] The Crown further submits that KGB is not an obstacle to the admissibility of the Witness’s statements in the event it is held to be the appropriate analytical framework. An oath, it says, is not an absolute requirement for a finding of reliability and there may be other circumstances that serve to impress upon a witness the importance of telling the truth. The Crown points to the fact that the Witness was found in the earlier adverse witness ruling to have feigned her lack of recollection as proof that she is not bound by her oath, thus obviating the significance of its absence with respect to her previous statements.

[85] With respect to the Witness’s demeanour at the time of her statements, the Crown submits that the December 1996 video-taped interview demonstrates the Witness’s reactions and demeanour, as well as Cpl. Best’s interview techniques. As for her remaining statements, it says that the officers’ evidence in this regard is sufficient, and cites R. v. Eisenhauer (1998), 123 C.C.C. (3d) 37 (N.S.C.A.) and R. v. Trudel, [1996] O.J. No. 1131 (Ont. Ct. of J.).

[86] Finally, the Crown submits that the absence of contemporaneous cross-examination is the most easily remedied of the hearsay concerns because Mr. Bagri had ample opportunity to cross-examine the Witness at trial and on the voir dire. The relevant consideration here is the opportunity to cross-examine, not whether the witness has a memory of the previous statement. To conclude otherwise would permit a witness such as the Witness to insulate herself from cross-examination and thereby frustrate the court’s search for the truth by simply claiming a loss of memory.

[87] Other relevant factors in assessing reliability in the present circumstances are the lack of motive to lie, the absence of any evidence of investigatory misconduct in eliciting the Witness’s statements, and the accuracy of the officers’ notes. The Crown submits that while the Supreme Court of Canada’s decision in R. v. Starr, supra, would appear to foreclose the practice of using consistency as between multiple statements as a factor going towards the reliability of those statements, the fact that the various officers recorded the Witness as relating the same information in almost the identical sequence should be considered in assessing the accuracy of their notes.

b. Position of Mr. Bagri

[88] Mr. Bagri submits that the Witness’s December 1996 statement was adopted by her at trial and admissible on that basis.

[89] With respect to the threshold reliability of the Witness’s remaining statements, Mr. Bagri responds that none of them satisfy the three indicia of reliability set out in KGB. None were given under oath or preceded by KGB warnings, nor were they videotaped. As well, the Witness’s lack of recollection with respect to the damaging parts of her statements constitutes a barrier to effective cross-examination. Mr. Bagri additionally submits that there is nothing in the circumstances in which the statements were taken that provides anything approximating functional substitutes for these KGB safeguards.

[90] Mr. Bagri admits that where the traditional KGB criteria or their substitutes are not present, it remains necessary to inquire into other circumstantial guarantees of trustworthiness that may emerge from the particular circumstances of the statement. The most important of these Khan/Smith criteria referred to in the jurisprudence are the contemporaneity of the statements to the events described, the witness’s state of mind, and the opportunity for contamination.

[91] The earliest of the Witness’s statements for which the Crown seeks admissibility are her September 1987 statements to Laurie, over two years after the events in question and not by any standard contemporaneous. The passage of time may have affected the accuracy of the Witness’s recollection and provided opportunity for deliberate concoction or, more likely, sub-conscious influences and ex-post facto interpretation of earlier events. He cites rumours in the community about Mr. Parmar’s and Mr. Bagri’s roles in the incidents, and the Witness’s alleged conversation with Mrs. Bagri which she interpreted as an admission of complicity as examples in this regard. The passage of time between the events of June 1985 and the various statements also created the opportunity for the police to contaminate the Witness’s statements by feeding information back to her (for example, Laurie telling the Witness that C.S.I.S. had been conducting surveillance on Mr. Parmar), thereby creating concerns regarding the independence of her recollection.

[92] Finally, Mr. Bagri submits that the Witness’s state of mind at the time she provided her statements is a relevant factor. She had had a falling out with Mr. Bagri, regarded herself as a victim of the Air India disaster, believed on the basis of what Mrs. Bagri allegedly told her that Mr. Bagri was involved, was allegedly fearful of Mr. Bagri, and was extremely emotional during her statements to Laurie. All of these circumstances impact negatively on the reliability of the Witness’s statements.

[93] Mr. Bagri concludes with the submission that in the event the Court finds that one or more of the Witness’s statements satisfy the reliability threshold, it should exercise its residual discretion to exclude the statement(s) since the prior statement evidence, considered in its totality, has minimal probative value and is highly prejudicial to both the accused and the trial process. The Witness’s evidence regarding Mr. Bagri’s visit to borrow her car is of no probative value unless it occurred on June 21, 1985, as the Crown alleges, rather than on June 9 as the defence alleges. The Crown is seeking to selectively tender only some of the Witness’s prior statements so as to permit the Court to draw this inference without reference to other statements that suggest it is tenuous at best. Beyond this obvious prejudice to Mr. Bagri, the substantive admissibility of the Witness’s statements creates the substantial risk that her sworn evidence will be rejected, the Court already having made a finding in the adverse witness ruling that her “purported lack of recall is not true”, and that the unsworn evidence will go unchallenged due to the futility of cross-examination in the circumstances.

c. Position of Mr. Malik

[94] Mr. Malik adopts the submissions of Mr. Bagri with respect to the Crown’s application. He additionally submits that the Witness’s statements as they specifically pertain to him constitute hearsay and are therefore inadmissible. They are also so ambiguous that the Court will not be able to properly assess their reliability and relevance, and this ambiguity cannot be resolved by cross-examination in the present circumstances. Their prejudicial effect therefore outweighs their probative value.

2. Conclusion

a. Do the Witness’s Statements Satisfy the Test in KGB?

[95] I accept Mr. Bagri’s submissions that none of the KGB criteria nor their functional substitutes are present in relation to the statements being tendered by the Crown on this voir dire.

b. Examination of Other Indicia of Reliability

[96] Even in the absence of all or some of the traditional KGB criteria, it is necessary for me to examine the circumstances surrounding the Witness’s statements to determine if other circumstantial guarantees of trustworthiness exist to the degree that they meet the test of threshold reliability. [See: R. v. Lauzon, [2000] O.J. No. 3940 (Ont. C.A.); R. v. Letourneau (1994), 87 C.C.C. (3d) 481 (B.C.C.A.); R. v. Persaud, [1999] O.J. No. 2989 (Ont. C.A.); R. v. Duong, [1999] O.J. No. 1651 (Ont. Ct. of J.)]

[97] While I am required to examine both the credibility of witnesses who testified on the voir dire and the reliability of the Witness’s statements to a threshold level, I am mindful that this is for the purposes of this application only. The standard of proof at the end of the trial, of course, is much different and these issues must then be re-examined with care in light of all the evidence presented at trial.

[98] I accept the evidence of Laurie with respect to what he was told by the Witness. He went to her home unannounced on a cold call for intelligence gathering purposes. He interviewed her without leading or suggestive questions.

[99] Once the conversation turned to Mr. Bagri’s late night visit to borrow the Witness’s vehicle, Laurie realized the apparent great significance of what he was being told. While taking no notes during the session so as not to discourage the Witness, he did make some notes in his vehicle very shortly thereafter, returned to his office and prepared a report setting out the details of the conversation.

[100] Laurie’s evidence provides a picture of the circumstances surrounding that interview. In the initial conversation at the door of the Witness’s home, she was cautious and guarded. Only when she was assured that he was not a police officer, that her identity would remain confidential, and that her information would not go to the police but only to the government for information purposes, did she invite him into her home.

[101] After speaking of discussions in the Sikh community, Laurie spoke of the need to provide answers for the families of the victims of the disaster. This produced a significant emotional response from the Witness and she began to relate the details of Mr. Bagri’s visit to her home, her belief that this visit was associated with the disaster and her resultant pulling away from her previous friendly relationship with the Bagri family. The revelations came quickly. Initial nervousness evolved to her becoming emotionally distraught when describing the impact on the families of the victims. At one point, she went to the floor, sobbing heavily. At the end of the interview, the Witness appeared visibly relieved when they discussed the great weight that had been lifted off her shoulders.

[102] The Witness described to Laurie what she interpreted as a serious threat to the lives of herself and her family should she reveal this information. Her actions then and now are consistent with a belief that the threat was and remains real. She was prepared to reveal her story only when she believed she could do so without risk to herself and her family. She believed the circumstances surrounding Laurie’s visit met that condition.

[103] The core incident related by the Witness is a simple, brief and unusual encounter with Mr. Bagri, a person well known to her. It was not the kind of evidence fraught with the risk of inherent unreliability, such as with eyewitness identification. Her story is internally consistent. For example, his request for her vehicle at that time of evening was unusual and would reasonably have elicited her request for further information. That further information was also unusual as it suggested that he was about to become involved in unlawful activity. She later linked that incident in her mind with the aircraft explosions that followed. The emotional impact of a disaster of those proportions, particularly with family members as victims, would have been significant in the extreme. This was followed by what she believed to be a serious threat to herself and her family if she revealed her “secret”, which she believed to be that late night visit. Memory of such an event would be deeply embedded and slow to erode, if ever.

[104] KGB endeavours to provide guarantees of reliability approaching those provided in a trial. Even at trial, of course, it is not uncommon for these safeguards to fail. The circumstances surrounding the making of a statement are often a crucial factor in any assessment of its reliability.

[105] Great caution must be exercised before admitting the Witness’s statements for their truth. The alternatives to reliability at a threshold level in this case are deception or mistaken recollection. While rare, there may nonetheless be instances where the circumstances surrounding the making of a statement, after careful examination, are sufficiently compelling to provide the requisite standard of reliability. The first statement to Laurie, in my respectful view, is one of them. The second statement to Laurie is also admissible as a mere continuation of the first without any circumstances having altered.