R. v. Briscoe, 2012 ABQB 158

Court of Queen ’ s Bench of Alberta Citation: R. v. Briscoe, 2012 ABQB 158 Date: 20120305 Docket: 100723519Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Michael Erin Briscoe Accused Corrected judgment: A corrigendum was issued on March 16, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Voir Dire Reasons for Judgment of the Honourable Mr. Justice K.D. Yamauchi _______________________________________________________ I.

Introduction [ 1 ] This Court heard viva voce evidence during the trial of Michael Erin Briscoe (“Briscoe”), some of which is hearsay evidence. The Crown seeks to have this Court rule that certain hearsay evidence is admissible in Briscoe’s trial.

II. Background [ 2 ] The Crown has charged Briscoe with two counts of first degree murder, one count of kidnapping and one count of aggravated sexual assault.

During the trial DDT, a witness and co-accused (“DDT”) in the murder of Nina Louise Courtepatte (“Courtepatte”), provided this Court with evidence concerning what had happened at the place where Briscoe was then living (the “Motel”) with Stephanie Bird, another co-accused (“Bird”). [ 3 ] DDT ’ s evidence was that after Courtepatte was murdered, DDT, Bird, Briscoe, and Joseph Laboucan ( “ Laboucan ” ), as well as one of Courtepatte ’ s friends ( “ Witness 1 ” ), went to the Motel.

All those present in the Motel room, with the exception of Witness 1 and Briscoe, have been convicted for participation in Courtepatte ’ s murder. [ 4 ] The following exchange took place between the Crown ’ s counsel and DDT: Q. Tell the Court what happens. Before doing so, I'd like you to remember that I am not looking for what you were -- what anyone said to you, in particular Mr. Laboucan just yet, okay? I just want to know what you saw and take it from there. A.

He bought -- he brought this bag out of the freezer and it was -- it had raisin bread in it, and he pulled something out of it wrapped in paper towel. When he opened the paper towel, he was right in front of me, and he showed me a severed pinky finger. Q. Describe what it looked like. A. It was small, feminine, purple nail polish. Q. Did it have any blood on it? A. Yes. Q. And this was shown to you? A. Yes. Q. Was it shown to anyone else? A. Everybody else was in the room. ... Q. ... So what if anything was said to you then, ... by Mr. Laboucan, while he was showing you this portion of a finger? ...

... A. Yes. He said at the took it from his last victim, and he was all proud when he showed it to me and everything. Q. Did he say anything about the last victim? A. That she was a prostitute. ... Q. Do you recall what kind of a voice Mr. Laboucan used when he said these words to you? A. It was really fast and loud, but it also sounded menacing. Q. Menacing? A. Yeah. Like, it seemed to me like there was, like, an undertone of a threat. Like that type of menacing. Q. All right. Did he say anything else, at that time, about the finger? A. No. Q.

What did he do with the finger after he -- or the portion of the finger, after he displayed it? A. He wrapped it back up in the paper towel and put it back in the bread bag and put the bread bag back in the freezer. Q. Just allow me a moment, please. Did Mr. Briscoe say anything, at that point in time, when Mr. Laboucan was both showing the finger and telling you things about it? A. No, not at that time. Q. Not at that time? A. No. Q. Did he say something about it at another time? A. Later on.

Q. When later on? A. Like, not right away. Stephanie Bird said yeah, I helped with that, and she sounded proud and Michael Briscoe was nodding his head. Q. Where was this taking place? A. In the bedroom. Q. In the motel? A. Yes. Q. [Witness 1] was present for this too? A. Yes. Q. What was [Witness 1]'s reaction? A. I don't know. I was too busy focusing on me. Trial Transcript, 22 February 2012, pp 107-110 [ 5 ] Witness 1 testified that Laboucan showed her the finger and said he “ liked to take souvenirs. ” He did not say where or when he got the finger. No one else said anything.

Witness 1 reports that DDT looked at the finger like it excited her. Witness 1 did not know where Briscoe was at the time of this conversation. V. Issue [ 6 ] The issue before this Court is whether Briscoe, by nodding his head, adopted Bird ’ s statement or any portion of it. VI. Law [ 7 ] Hearsay evidence is presumptively inadmissible if the purpose of entering the statement is to prove the truth of the contents of the statement. See eg R v Khelawon , 2006 SCC 57 at para. 3 , [2006] 2 SCR 787 .

Because hearsay evidence is presumptively inadmissible, the person who seeks to have the court declare the statement as admissible bears the onus. In this case, that person is the Crown.

[8] An exception to the general rule that excludes hearsay evidence is where an accused adopts the hearsay statement by wordsor conduct. In the often-cited case, R v Stein, (SCC), [1928] SCR 553 at 558, [1929] 1 DLR 143 [“Stein”], the courtsaid: It is impossible to say that in the case now before us there has been no miscarriage of justice.

It may be that sometimes objectionabletestimony as to which there has been misdirection is so unimportant that the court would be justified in taking the view that in all humanprobability it could have had no effect upon the jury's mind, and, on that ground, in refusing to set aside the verdict. ... It is only when theaccused by "word or conduct, action or demeanour" has accepted what they contain, and to the extent that he does so, that statementsmade by other persons in his presence have any evidentiary value [citations excluded].

In Stein, the Supreme Court of Canada found that there was no evidence in the record from which a jury might infer any kind of anadmission by the accused of the accuracy of the incriminating statements of others. [9] The Ontario Court of Appeal expanded on the principle that Stein established in R v Dimetro (1945), (ONCA), 85 CCC 135 at para 4 (Ont CA), when it said: ... But the evidential value of the evidence depends on the words, action, conduct or demeanour of the accused at the time the statementwas made: ...

The question to be determined is twofold: First: Was there evidence from which the Court could reasonably infer that theaccused by their behaviour acknowledged their guilt? Second: Should such an inference be drawn? The first question as put is one of law,the second is one of fact.

If there was evidence on the record from which the inference of guilt might reasonably be drawn, this Courtought not to review the weight of it: ... [10] It is important to note that there must be sufficient evidence from which the trier of fact might reasonably find that anaccused’s conduct amounted to an acknowledgement of responsibility: R v Warner (1994), (ON CA), 21 O.R. (3d) 136at 144-145, 75 O.A.C. 288 (Ont CA) [“Warner”].

With respect to third party statements, the British Columbia Court of Appeal said in Rv Harrison, (BC CA), [1946] 3 DLR 690, 62 BCR 420 at 430 (BCCA): ... [S]uch evidence should not be allowed in until a foundation has been laid for its admission by proof of facts from which, in theopinion of the presiding judge the jury might reasonably draw the inference that the accused had so accepted the statement as to make itin whole or in part his own. [11] What is that foundation? In R v Tanasichuk, 2007 NBCA 76 at para 110, 321 NBR (2d) 44 [“Tasasichuk”], the court saidthat: (

a) the statement must have been made in the accused’s presence, in circumstances such that the accused would be expected torespond; (

b) the accused’s failure to respond could reasonably lead to the inference that, by his silence, the accused adopted the statement;and (

c) the probative value of the evidence outweighs its prejudicial effect. However, the simple presence of the accused when a third party makes a statement does not, on its own, show that the accused adoptedthe statement: R v Dubois (1986), (ON CA), 13 OAC 342, 27 CCC (3d) 325 at 341-342 (Ont CA) [“Dubois”].

[12] This analysis is contextual, in the sense that the trial judge must look at all the circumstances in which the person made thestatement and the response, if any, by the accused person: R v Hammond, (ON CA), [1970] 1 OR 583 at 586, [1970] 2CCC 140 (Ont CA). The danger of evidence considered out of context was illustrated in R v Ferris, (SCC), [1994] 3SCR 756, 174 NR 158, where a police officer overheard one side of a telephone conversation between the accused and his father duringwhich the accused said “... I killed David ...” (R v Ferris, 1994 ABCA 20 at paras 3-5, 149 AR 1).

Was the accused admitting liability orwas he responding to a question that his father posed concerning why the police had arrested him? The court found this evidence to bespeculative and its probative value tenuous. In other words, there might be more than one inference that could be derived from thestatement, or the lack of a statement, or

an act on the accused’s part. [13] In Tanasichuk at para 110 the court said: If, upon considering all of the circumstances, the trial judge is not satisfied that the silence of the accused could support an inference thatthe accused assented to the statement, the evidence has no probative value, is highly prejudicial, and ought not be put to the jury.

If, onthe other hand, the judge concludes that the silence of the accused can support such an inference, the evidence is admissible, but it isnevertheless imperative that the judge instruct the jury ... that "it is for them to decide whether the accused, by his conduct, adopted thestatements made in his presence and only to the extent that they were adopted should the jury accept them as true," and that, in sodeciding, they must "consider all of the circumstances under which the statement was made" ...

Moreover, the jurors must be instructedthat "if in their view the accused did not assent [...] to the correctness of the statements made in his presence, these statements wouldhave no evidentiary value [...] and should be entirely disregarded" ... [citations excluded]. [14] The trial judge must determine in a voir dire: first, whether the probative value of the hearsay evidence outweighs its prejudicial effect, and if so, whether the hearsay evidence reasonably meets the requirements for admission as a statement against interest. [15] Only then will the trier of fact decide, given all the circumstances, what weight should attach to the statements, particularlythose relating to reliability: Warner at para 27.

See also Dubois at 342; Tanasichuk at paras 110, 121. In Alan W Bryant, Sidney NLederman & Michelle K Fuerst, The Law of Evidence in Canada 3d (Markham, Ont, LexisNexis, 2009) at §6.446, the authors say: Much care must be taken with this kind of evidence, particularly since it is open to different

interpretations. ... Because of the possibilityof ambiguity in interpreting the lack of a response or the nature of a particular response, a court should examine all of the circumstancesin order to conclude whether the individual has behaved in such a way so as to adopt the statement made to him or her as true. VII. Analysis [16] The disputed evidence that is the subject of this voir dire is Laboucan’s statement, Bird’s comment “yeah, I helped with that”and Briscoe’s nod of his head.

In this case, the Crown argues Briscoe’s nod of his head is his acknowledgement of either his involvementwith the murder of Ellie May Meyer (“Meyer”) or, at a minimum, his awareness of Meyer’s murder. [17] The relevant jurisprudence makes explicit that the question is not simply whether Briscoe nodded his head after a phrase orcomment by a different person.

This Court must look at the whole of the circumstances in which Briscoe nodded his head to determinewhether the Crown has established a firm foundation on which to build the necessary inferences. [18] Laboucan had in his possession what the Crown purports to be Meyer’s finger. Dr. Bernhard Bannach, the doctor whoperformed the autopsy on Meyer, showed this Court a photograph of Meyer’s left hand, which showed that her left “pinky finger” hadbeen removed.

He testified that the left hand had “ragged margins” in that area, which meant that her finger was not sliced off cleanly.DDT’s description of the severed finger is consistent with the state of Meyer’s left hand. Laboucan was found guilty of first degreemurder in Meyer’s death. This Court heard from two witnesses who testified that Laboucan produced a severed finger. It is not clearwhether both witnesses were present at the same time when Laboucan showed this finger or whether he showed the finger on more thanone occasion.

[ 19 ] Witness 1 did not know whether Briscoe was present when Laboucan showed her the finger. DDT testified that “ he showed me a severed pinky finger. ” Although “ everyone else was in the room, ” she further testified that “ ... he was all proud when he showed it to me . ” She testified that Laboucan said nothing else before he returned the finger into the bread bag. Briscoe said nothing “ at that time. ” “ Later on ” was when Bird made her comment and Briscoe nodded his head. [ 20 ] This Court does not know the context in which Bird made her comment, or when she made her comment.

Although this Court might be inclined to hold that because DDT provided this Court with her narrative concerning Bird ’ s comment and Briscoe ’ s nodding within the context of her discussion of Meyer ’ s finger, it is possible that Bird ’ s comment was made with respect to another matter, or in reference to another event. [ 21 ] As well, if Briscoe nodded his head, this Court is not clear as to the subject on which he was providing an affirmative response, if that is, indeed, what the head gesture was intended to indicate. Was he confirming that Bird was there? That he was there? That Laboucan removed the finger?

That it was a finger? In other words there might be more than one inference that the trier of fact could draw from Briscoe ’ s nod. The nod is speculative. [ 22 ] This evidence has little probative value because of the uncertain context for which Briscoe nodded his head. Even if this Court is wrong in this determination, it finds that its prejudicial effect far outweighs its probative value. VIII. Conclusion [ 23 ] For the foregoing reasons, this Court rules that Briscoe ’ s nodding of his head is not admissible. Heard on the 2 nd day of March, 2012.

Dated at the City of Edmonton, Alberta this 5 th day of March, 2012. K.D. Yamauchi J.C.Q.B.A. Appearances: John D. Watson and Douglas Taylor Mega Prosecutions Alberta Justice and Attorney General

for the Crown (Applicant) Charles B. Davison for the Accused (Respondent) _______________________________________________________ Corrigendum of the Voir Dire Reasons for Judgment of The Honourable Mr. Justice K.D. Yamauchi _______________________________________________________ Please note that Robert Robenhaar was removed from the Crown appearances and that Crown was changed to the Applicant in this judgment and the Accused was changed to the Respondent.