R v Vader, 2016 ABQB 266

Court of Queen ’ s Bench of Alberta Citation: R v Vader, 2016 ABQB 266 Date: 20160512 Docket: 130781800Q1 Registry: Edmonton Between: Her Majesty the Queen Crown (Applicant) - and - Travis Edward Vader Accused (Respondent) _______________________________________________________ Reasons for Judgment – Admissibility of statements to the police by Bobbi-Jo Vader of the Honourable Mr. Justice D.R.G. Thomas Formal reasons; a

summary was delivered orally the afternoon of May 10, 2016. These written reasons form the official judgment of the Court. _______________________________________________________

Table of Contents I. Introduction . 2 II. Facts . 2 Alleged drug use by Travis Vader 3 Ms. Vader’s evidence about firearms in the possession of her brother 3 III. Positions of the parties . 5 IV. Law .. 6 V. Analysis . 9 Alleged drug use by Travis Vader 9 Ms. Vader’s evidence about firearms in the possession of her brother 9 VI. Conclusion . 11 I. Introduction [ 1 ] Ms. Bobbi-Jo Vader (“Ms. Vader”) was called as a Crown witness in the trial involving her brother, Travis Edward Vader (“Travis Vader”). Her oral testimony is not wholly consistent with three previous statements which she made to the police in 2010.

The Crown now seeks to admit for the proof of the truth of its contents certain excerpts from those statements. II. Facts [ 2 ] During her examination-in-chief, Crown counsel asked Ms. Vader questions about three statements that she gave to the police. The subject-matter of those statements included, inter alia , the nature and extent of the use of drugs by Travis Vader, particularly methamphetamine, and whether or not and the extent to which Ms.

Vader understood her brother to be in possession of firearms at a particular location in Edmonton, Alberta late in the evening of July 4, 2010, or early in the morning of July 5, 2010. For the sake of simplicity, I will refer in this decision to this time period as July 5, 2010. [ 3 ] The police had taken Ms. Vader's statements in 2010, on July 16, August 6, and September 7 (“Statements No. 1, No. 2, and No. 3”, respectively; and collectively the “Statements”). The police made a video recording at the time of taking Statement No. 2, and audio recordings at the time of taking Statements Nos. 1 and 3.

Transcripts of all three of the audio recordings were prepared by the RCMP in respect to all of the Statements. The video and audio portions of these Statements were played in their entirety in Voir Dire No. 13 held on April 18, 2016. At that time I listened to the audio recordings and compared what I heard to the transcripts and confirmed that the transcripts are generally accurate. [ 4 ] At the end of Voir Dire No. 13, the Crown applied to admit portions of the Statements for the proof of the truth of their contents.

Specifically, the Crown asked the Court to receive the following aspects of Statements No. 1, No.2 and No. 3, namely: (1) that Travis Vader used methamphetamine leading up to and including the summer of 2010; (2) that, early in the morning on July 5, 2010, Ms. Vader collected one or more firearms concealed in blankets from the back of a dually truck alleged to have been driven by Travis Vader; and (3) that Ms. Vader knew, at the time, that firearms were concealed in the blankets because Travis Vader told her they were there and to be careful.

Alleged drug use by Travis Vader [ 5 ] During her examination-in-chief, Ms. Vader was asked about her brother’s drug use. When asked whether she recalled Travis Vader calling himself a “cook”, Ms. Vader initially testified that she did remember that but that she did not know what he meant in using that term. [ 6 ] Counsel invited Ms. Vader to refresh her memory by reviewing the transcript of Statement No. 1. Shortly into that interview, and after being asked generally about her brother’s history, Ms. Vader volunteered that her brother had experienced struggles over the previous two years.

When probed on this point, Ms. Vader said that her brother had lost his family, his job, his property, and his friends. She continued: “He’s hanging out with people that are affiliated with crime. He’s into meth. He calls himself a ‘cook’.” After reviewing the transcript of Statement No. 1, Ms. Vader testified that she understood her brother’s self-description as a “cook” to mean that he cooked meth. [ 7 ] Ms. Vader testified further that she had never seen her brother use meth, nor could she discern when somebody was high on meth.

When asked whether she would ever have commented that her brother “was totally methed out, too messed up … to talk to”, Ms. Vader replied that she did not know why she would have said that, given that she cannot tell if somebody is high on meth or some other drug. When asked whether she would have told the police, “When I look into his eyes, he’s not there. He’s into meth”, Ms.

Vader agreed she said that, but that she did not know why she used those words except that she was listening to what other people told her, and she “just assumed” that her brother was using meth. [ 8 ] After refreshing her memory with the portions of the transcript of Statement No. 1 relating to the statements suggested by the Crown, above, Ms. Vader testified that what she meant when the police interviewed her was that she had seen her brother high on drugs,

but she did not know what kind of drugs. Ms. Vader’s evidence about firearms in the possession of her brother [ 9 ] During her examination-in-chief, Ms. Vader testified that, late on July 4 or 5, 2010, after her brother arrived at the house where she was staying at the time, she retrieved a number of items from the truck he had been driving. When asked whether Ms. Vader was aware of anything else in the truck, she answered, “I do know that there was some guns in the back seat, but I didn’t see them myself”. [ 10 ] When asked by Crown counsel how she was aware of this, Ms.

Vader responded: Well, see, that’s where I’m a little bit confused. Because my first statement [to the police], I didn’t mention the guns. And then my second statement, the investigator asked me about the guns. And at that time in my life, I was a little confused with some things. So I’m not really sure if somebody might have put that in my head or not. So I can’t give an honest answer on that. [ 11 ] Further along in the questioning, Ms. Vader testified that an acquaintance, Jen may have put the idea of guns into her head. [ 12 ] When asked directly whether Ms.

Vader had any knowledge of there being guns in the truck, Ms. Vader replied, “Well, it wouldn’t be un-normal for my brother to have guns in a vehicle. So, I mean, he was a hunter. There’s been guns around all the time. So there could be or could not be, right.” Ms. Vader was unable to clarify how that was related to her knowledge of there being guns in the truck on the date in question. [ 13 ] Later in her testimony, Crown counsel asked Ms. Vader whether her brother had told her there were guns in the truck.

She answered, “See, I can’t be clear on that because I thought he did, but I’m not totally clear on that.” After being invited to refresh her memory from the transcripts of the police statements, Ms. Vader said that she had read them already. She rejected a repeated invitation to refresh her memory by responding, “Honestly, I just can’t give an honest answer on that because I’m not clear in my head exactly what happened there. Like I told you before, I think that Jen might have stuck something in my head because why wouldn’t I say that in the first statement that I gave?

So I can’t give an honest answer on that, so I’m not going to lie.” [ 14 ] Ms. Vader affirmed her earlier testimony that she saw blankets in the back of the truck, but she did not know whether anything was wrapped in them, nor could she be clear about whether her brother had warned her about anything in the truck. [ 15 ] At this point, Ms. Vader refreshed her memory using the transcript from Statement No. 2 wherein she initially told the police officer, “I don’t know of any firearms that was in [the truck]”. After the officer probed, Ms.

Vader responded: “I know there was firearms in there but I don’t know what kind they were. I didn’t see them personally myself. I heard … but I did not see any. All’s I know is that they were in the back, wrapped up in blankets. … But that’s what I heard.” When asked by the officer for the source of this information, she responded that her brother had said “there were guns in the back” and that “he said be careful ‘cause there was firearms in the back”. [ 16 ] When Crown counsel asked whether her memory was refreshed, Ms. Vader stated: I don’t remember it.

I don’t remember him saying that, so I’m not sure what—why I would say this. I did see a blanket in the back seat. It was folded up. It’s not normal for Travis to have—to have guns. So like I said prior, I can’t give an honest answer on this. I did not see any guns personally myself. [ 17 ] Ms. Vader was then invited to read excerpts from the transcript of Statement No. 3. In that interview, when Ms.

Vader was asked how she knew there were guns in the back, she responded, “Because Travis told me there was guns in the back seat wrapped up in a blanket.” When asked what her brother specifically said about the guns, she responded, “I think just be careful, there’s guns in … the back”. [ 18 ] When asked by counsel whether that refreshed her memory as to what her brother told her, she replied, “Well, it seems like I said it twice, so I don’t know what to say here. So maybe he did tell me. I’m not really sure. Honestly, I cannot give you an honest answer on that.” [ 19 ] At this point in Ms.

Vader’s testimony, and after hearing arguments from both sides, I granted leave to the Crown to cross- examine Ms. Vader under section 9(2) of the Canada Evidence Act , RSC 1985, c C-5. [ 20 ] Crown counsel resumed questioning Ms. Vader about the guns by asking about what she had said earlier in regards to Jen’s putting into her head the idea of the guns. After asking to confirm that she had implicated Jen, Ms. Vader said, “I can’t give you an honest answer on that. I don’t remember what happened there. I don’t know if it was put in my head by Jen or if Travis told me.” Ms.

Vader was pressed on why she held this view, and in response to the suggestion that she had told Jen about the guns, who then told the police about the guns, and in response the police returned to interview Ms. Vader, she replied, “Honestly, I cannot give you an honest answer, so … I don’t know. I don’t remember what happened.” [ 21 ] Ms. Vader agreed with Crown counsel’s suggestion that she had been truthful to the police when she told them that Travis had told her that there were guns in the truck. However, on the next question on this point, Ms.

Vader responded: I wouldn’t say it’s the truth because, honestly, I don’t remember who told me about the firearms. I don’t know why I said that. Maybe I thought he said that to me, because at the time I was messed up on drugs. And Jen had picked me up, I think it was a Wednesday or a Thursday, and I was with [omitted] at the time, who I was using with, and I hadn’t slept, and Jen has stuff over me, like drug use. So she uses things against me. So I can’t give you an honest answer from the bottom of my heart. [ 22 ] On cross-examination by defence counsel, Ms.

Vader said that it was “very correct” that she could not recall who made the

statements about there being guns in the truck, and she agreed with the suggestions that the source of that information could have comefrom her acquaintance or another source. Furthermore, Ms. Vader agreed with the suggestion by defence counsel that she never moved orotherwise touched the blankets in the truck. III. Positions of the parties [23] The Crown argues that portions of Ms.

Vader’s Statements to the police should be admitted for the proof of the truth of theircontents because they meet the twin threshold requirements of necessity and reliability. [24] Regarding threshold necessity, Crown counsel argues that Ms. Vader recanted her earlier statements to the police, being thather testimony was clearly different than what she had told the police. Counsel also takes the position that Ms.

Vader is not denying thatshe has a memory, but that, in regards to contentious issues (i.e., Travis Vader’s use of drugs and the presence of guns in the truck he wasdriving), she says that she cannot be sure as to whether or not her statements reflect her own, independently held beliefs or insteadwhether they reflect what other people have told her. [25] Regarding threshold reliability, Crown counsel argues that threshold reliability is established for the following reasons: (1)defence counsel cross-examined Ms.

Vader in relation to the inconsistencies between her testimony and her statements to the police; (2)Ms. Vader understood the gravity of the circumstances when the police interviewed her;

(3) Ms. Vader’s reluctance to divulgepotentially incriminating information about her brother reflects her truthfulness;

(4) Ms. Vader was not under the influence of drugs oralcohol during the interviews; (5) the video and audio recordings of the statements provide reliable insight into the nature of theinterviews; and (6) the police in all of the interviews impress upon Ms. Vader the importance of her telling the truth, and she responds inkind. [26] Defence counsel takes the position that threshold necessity is not made out, being that Ms. Vader did not recant, but rather hertestimony on the matter of the guns was inconsistent with her statements to the police on this point.

Counsel suggests that the law in thisarea has not become so flexible as to permit the Court to find that inconsistencies render it necessary to admit her previous statements forthe proof of the truth of their contents. Counsel argues that the Court must find that Ms. Vader expressly recanted her out-of-courtstatements, and that her poor memory on the subject does not meet threshold necessity. [27] Defence counsel also argues that threshold reliability is not made out, for the following reasons: (1) the police did notadminister an oath to Ms. Vader prior to interviewing her;

(2) Ms. Vader’s three police Statements were not consistent amongthemselves, but even if they were, then such consistency is not properly corroborative, nor should they be used to bootstrap their ownreliability; (3) defence counsel did not have a full opportunity to cross-examine Ms. Vader. [28] On the second point, above, Crown counsel in response asked the Court to consider the evidence of firearm use that hadalready emerged at trial as supporting the reliability of Ms.

Vader’s statements about guns during the police interviews. [29] On the third point, above, defence counsel takes the position that the opportunity to cross-examine Ms. Vader arose out of theCrown’s successful application under section 9(2) of the Canada Evidence Act, and accordingly the focus of the cross-examination wasnot the same or as robust as if the cross-examination had been conducted as part of Travis Vader’s opposition to the Crown’s applicationto admit Ms.

Vader’s statements for the proof of the truth of their contents. [30] In response to this position, and to mitigate any prejudice to Travis Vader, I invited defence counsel either to cross-examineMs. Vader, or to work with Crown counsel to edit the police statements with an eye to redacting portions containing matters which werenot addressed during the cross-examination conducted during the Canada Evidence Act application. Both sides agreed that thesesuggestions were reasonable, and defence counsel opted to work with the Crown in paring down the police statements as opposed tocross-examining Ms.

Vader again. [31] In a written brief provided in advance of oral arguments, defence counsel also suggested that Ms. Vader was addicted to drugsduring the times when the police interviewed her. Given that she would experience visual and auditory hallucinations due to the drug use,Ms. Vader’s ability to observe and recall events was impaired, and this in turn undermines the reliability of her statements to the police. IV. Law [32] Out-of-court statements made by witnesses are presumptively inadmissible, being that they are hearsay.

However, the lawallows for exceptions for statements carrying certain guarantees of inherent trustworthiness. They may be admitted for the proof of thetruth of their contents where they fall into certain established categories—none of which apply in these circumstances—or where theevidence meets the twin threshold requirements of necessity and reliability.

The party seeking to adduce the evidence to establish thesecriteria bears this onus on a balance of probabilities (R v Khelawon, 2006 SCC 57 at para 47, [2006] 2 SCR 787). [33] The principled approach which allows trial judges to consider the threshold necessity and reliability permits a flexible, case-by-case analysis, given the various scenarios which might give rise to the need to admit statements which would otherwise be barred bythe hearsay rule (R v Youvarahaj, 2013 SCC 41 at para 21, [2013] 2 SCR 720). [34] The necessity criterion is flexible because testimony of a witness may be functionally unavailable during trial for a number ofreasons.

The authorities reveal common circumstances: a witness who recants from, or otherwise retracts significant aspects of an earlierstatement; genuine or feigned memory loss; the need to supplement a witness' testimony with significant details; a witness who agreesthat a statement must have been truthful without recollection of underlying events; or where the witness admits to making a statement butrefuses to state whether it was true or false (see e.g.

Youvarahaj at para 22; R v Napope, 2015 ABCA 27 at para 28, 319 CCC (3d) 526);R v Thomas, 2009 MBCA 85 at para 29, 245 Man R (2d) 155; R v Woodward, 2009 MBCA 42 at paras 49–50, 240 Man R (2d) 24; R vDiu (2000), (ON CA), 133 OAC 201 at para 63, Ont CA). [35] The reliability criterion likewise is approached flexibly, being “a function of the circumstances under which the statement wasmade” (R v Smith, (SCC), [1992] 2 SCR 915 at 933, cited in Napope at para 29). A number of factors could reveal

whether the statement meets a threshold level of reliability: an opportunity to conduct a full and effective cross-examination (being themost pressing concern in establishing reliability); whether the statement was made under oath; the presence of a warning as to liabilityfor false statements; the presence of video recording to permit assessment of demeanour, credibility, and the tenor of the questioning;and the existence of other evidence confirming some of the factors in the hearsay evidence (Napope at para 33). [36] The notable case of R v B (KG), (SCC), [1993] 1 SCR 740 was, for a time, taken by some to mean that itwas necessary and sufficient to show that the out-of-court statement was recorded by video, under oath, accompanied by a warning, andthat the declarant was available for cross-examination at trial. [37] However, the Supreme Court of Canada has now made clear that B (KG) was never intended to create categorical exceptionsto the hearsay rule, and that “admissibility was to be determined using the principled approach on a case-by-case basis, allowing the[reliability indicia] to provide guidance in the reliability assessment as opposed to rigid requirements” (Youvarahaj at para 98). [38] As the Supreme Court of Canada held in Khelawon, threshold reliability will generally be met in either of the two followingcircumstances: (1) where there is no real concern about a statement’s truth owing to the circumstances in which it arose; and (2) wherethere is no real danger that the statement is made in hearsay form since, in the circumstances, its reliability can be sufficiently tested bymeans other than contemporaneous cross-examination and presence (at paras 62–63).

As Charron J. stated, “common sense tells us thatwe should not lose the benefit of the evidence when there are adequate substitutes for testing the evidence” (at para 63). [39] The most important factor to consider in a threshold reliability analysis is whether the opposite party has a full opportunity tocross-examine the witness on the out-of-court statements.

When cross-examination is combined with an accurate record of the statement,many of the dangers of hearsay are alleviated (Youvarajah at paras 35, 141). [40] Regarding the presence or absence of an oath, Lamer C.J.C. in B (KG) indicated that trial judges may conclude thatappropriate substitutes might exist, namely circumstances serving to impress upon the witness the importance of telling the truth (at792).

Moldaver J.A., as he then was, opined in R v Trieu (2005), (ON CA), 74 OR (3d) 481 at paras 73, 76 (Ont CA)that where the out-of-court statement was fully recorded on video and the declarant was available for cross-examination at trial, the oathcarries a modest burden, and indeed the first two factors in combination “go virtually ‘all of the way’ to providing the triers with thetools they need to adequately assess reliability”. [41] Defence counsel argues that Ms.

Vader’s statements to the police are inherently unreliable because she was addicted to andregularly using drugs around the time when she made the statements, and that her apparent sobriety and lucidity during the interviewsshould not be taken to mean that her capacity to observe and recall was not impaired. In R v Assoun, 2006 NSCA 47, 207 CCC (3d) 372,the trial judge admitted a number of statements made by the victim to various individuals prior to her death.

On appeal, the defenceargued that the victim’s statements should not have been admitted because they were made under “circumstances of suspicion”,specifically that the victim was, inter alia, addicted to crack cocaine.

The Court found that the victim’s “addiction to crack cocainewould not be relevant to threshold reliability unless there was evidence that she was under the influence of drugs when she made anyparticular statement” (at para 127). [42] In R v Keewatin, 2013 ABPC 1, 555 AR 78, the trial judge found that a complainant’s res gestae statement made while hewas severely intoxicated did not meet threshold reliability. Sully Prov.

J. noted that “[a] spontaneous statement coming from a personwho is sober and who possesses a stable mental capacity is inherently trustworthy and, accordingly would have sufficient thresholdreliability to be admitted into the evidence of the trial” (at para 38). [43] Counsel on both sides raised the issue of consistency among Ms. Vader’s three statements, each of which was made to adifferent police officer. The Crown argues that the consistency on certain issues over all three interviews bolsters their inherentreliability.

Defence counsel takes the position that where a witness makes multiple out-of-court statements, the consistency of any one ormore of them cannot be used to bootstrap or corroborate any of the other statements. To that end, defence counsel argues, the Courtshould not consider the consistency of Ms. Vader’s statements as an indication of threshold reliability. [44] In Khelawon, the Supreme Court of Canada considered whether, in a hearsay analysis, a trial judge can look to other evidenceto confirm the reliability of an out-of-court statement (at paras 94–100).

The Court adopted the dissenting reasoning of Kennedy J. inIdaho v Wright, 497 US 805 at 828–29, 833–34 (1990), who took the position that there is no principled reason to exclude extrinsiccircumstances and corroborating evidence in determining the reliability of hearsay evidence. [45] However, when the corroborating evidence comprises the declarant’s own statements to other individuals, the principledhearsay approach runs squarely into the evidentiary rule that prior consistent statements are generally inadmissible because suchstatements usually lack probative value (R v Stirling, 2008 SCC 10 at para 5, [2008] 1 SCR 272).

One specific sub-rule is that therepetition of a statement by a person does not render it more likely to be true or corroborative because repetition is self-serving and thesource lacks independence (R v Sylvain, 2014 ABCA 153 at paras 82–83, 575 AR 59, citing R v Aksidan, 2006 BCCA 258 at para 18,209 CCC (3d) 423; R v DB, 2013 ONCA 576 at para 31, 310 OAC 294). This rule, of course, bears exceptions, namely narrative andrecent fabrication, which are not in issue in the case at bar.

Likewise, although not necessarily an exception per se, there is someauthority for the proposition that repetition of an out-of-court statement might be overcome “by the spontaneity of the statement and thevery low possibility of deliberate distortion or concoction that results” (R v Byrnes, 2012 ONSC 2090 at para 32, [2012] OJ No 1454(QL)). [46] With this law in mind, I turn now to consider the Crown’s application. V. Analysis Alleged drug use by Travis Vader

[47] During examination-in-chief, Ms. Vader initially denied any understanding of her brother’s use of the term “cook” to describehimself. When confronted with the transcript of Statement No. 1, Ms. Vader conceded that Travis Vader must have meant that he“cooked” meth. [48] Ms. Vader also testified that she had never seen her brother use meth, nor could she discern when somebody was high onmeth. When pressed to account for her statements to the police that her brother “was totally methed out, too messed up … to talk to”, Ms.Vader replied that she did not know why she would have said that. Ms.

Vader testified that she “just assumed” that her brother was usingmeth, perhaps based on what she had heard other people say. [49] Ms. Vader is not a true recanting witness on this issue. I had found inconsistencies between her testimony and her previousstatement, and that will be part of my consideration of the weight which I give to her testimony. However, Ms. Vader has not disavowedor otherwise recanted her earlier statements, but instead offered the Court an inconsistent version of an earlier statement.

For this reason,the Crown has not made out threshold necessity, and there is no need to consider the reliability of the portions of the statement whereinshe discusses Travis Vader’s alleged drug use. Ms. Vader’s evidence about firearms in the possession of her brother [50] Ms. Vader’s first position during examination-in-chief was that, on the date in question, she believed that there were firearmsin the back seat of the truck that Travis Vader was driving. She offered this information without being prompted specifically aboutfirearms. After being asked a number of times to explain the source of her belief, Ms.

Vader’s position migrated from “I do know thatthere was some guns in the back seat” to “I’m not really sure if somebody might have put that in my head or not” to “I can’t really be sureif there was guns there or not”. [51] During Statements No. 2 and No. 3, Ms. Vader told the police that she believed that guns were in the truck because TravisVader had told her that. Crown counsel presented Ms. Vader with those portions of the transcripts, and in response she stated, “So maybehe did tell me. I’m not really sure. Honestly, I cannot give you an honest answer on that.” [52] Under cross-examination, Ms.

Vader asserted that it was “very correct” that she could not recall who made the statementsabout there being guns in the truck, suggesting that indeed she did believe that there were guns in the truck. [53] The change in Ms. Vader’s testimony on this point can be characterized as a blend of recantation as well as memorydeficiency. Whether such memory loss is genuine or feigned does not bear on my analysis. This is not the ordinary case of an honestlyforgetful witness, or a witness whose present memory conflicts with her previous statement. I find it peculiar that Ms.

Vader, duringexamination-in-chief, proffered the information about her belief in the presence of guns without any prompting, and immediatelydistanced herself from this position on account of a poor memory and the unreliability of third-party sources. For these reasons, thresholdnecessity is made out by the Crown. [54] Regarding threshold reliability, recordings were made of her Statements No. 2 and No. 3 by video and audio, respectively.The quality of the recordings is good and enables the Court to make a sufficient assessment of Ms. Vader's demeanour.

I am satisfied thatshe was sober and lucid, her attention properly focused on answering questions about what she well understood to be a very seriouscriminal investigation implicating her brother in the murder of two elderly people. [55] The police interviewers repeatedly reminded her of the importance of telling the truth and she responded in kind that she wastelling the truth. Likewise, Ms. Vader acknowledged in her testimony that it was important to tell the truth, given the seriousness of thesituation. Although the interviewers did not administer an oath, I am convinced that Ms.

Vader understood the ramifications andconsequences of choosing between telling the truth and not telling the truth. [56] Defence counsel cross-examined Ms. Vader within Voir Dire No. 12, which was conducted for the purpose of determiningCrown counsel’s application under section 9(2) of the Canada Evidence Act. During this cross-examination, through a series of questionsemphasizing Ms.

Vader’s drug use as well as the circumstances under which the Statements to the police arose, defence counsel broughtinto question generally the reliability of the Statements. [57] After I granted the Crown’s s. 9(2) application, the trial proper resumed and Crown counsel cross-examined Ms. Vader on theinconsistencies between her Statements and her previous testimony, including her beliefs in respect to the presence of guns.

Defencecounsel cross-examined the witness again, leading the witness specifically and repeatedly on the question of who was responsible for herbelief that she expressed to the police that there were guns in the truck that Travis Vader was driving. [58] Crown counsel subsequently made the application giving rise to this decision, with defence counsel noting that the Crown hadnot given proper notice of the application prior to exercising an opportunity to cross-examine Ms. Vader. [59] I agree that the Crown did not properly give notice to Travis Vader regarding its intent to bring this application.

It is entirelypossible that defence counsel would have taken a different approach in cross-examination. However, this is mitigated by defencecounsel’s two cross-examinations of Ms. Vader, taking specific advantage of the opportunity to elicit testimony on the matter of guns.The leading questions were not of such a nature that they have prejudiced Mr. Vader’s position on this application. The examinationswere robust and pointed.

Before coming to the decision on this application, I gave defence counsel another opportunity to conduct anadditional cross-examination in order to establish as thoroughly as possible the position of Mr. Vader on the reliability of Ms. Vader’sStatements, but as of this date, counsel has not taken advantage of that opportunity. [60] I am mindful of the decision of the Alberta Court of Appeal in R v Huntington (1995), 1995 ABCA 194 , 169 AR45, wherein the trial judge had not conducted a complete voir dire prior to admitting a hearsay statement.

Kerans J.A. said, “the purposeof a voir dire or admissibility hearing, is to give both sides an opportunity to lead evidence and make submissions before decision” (atpara 3, emphasis in original).

[ 61 ] In the application before me, given the totality of the factors and defence counsel’s two cross-examination sessions, I am satisfied that the Crown has established threshold reliability. Should defence counsel take advantage of a further invitation to cross- examine Ms.

Vader again, her testimony will be taken into account in deciding the overall weight to be attributed to her evidence. [ 62 ] In concluding that the Crown has established threshold reliability on the matter of the guns, I have disregarded the nuances of the content of the Statements, in particular whether or not the Statements are consistent, and the degree of consistency or inconsistency. In disregarding this aspect, I am mindful of the general rule against the admission of prior consistent statements, and the presumptive lack of value of the repetition of a statement by a witness.

In this application, I am satisfied that threshold reliability has been made out based on the circumstances, and notwithstanding the substantive content of Ms. Vader’s Statements. VI. Conclusion [ 63 ] The Crown has established threshold necessity and reliability in respect to Ms.

Vader's out-of-court statements regarding her belief about the presence of guns in the truck driven by Travis Vader in the early morning of July 5, 2010 in Edmonton, Alberta. [ 64 ] However, threshold necessity has not been made out by the Crown on the issue of Travis Vader's use of drugs and that out-of- court statement and in particular Statement No. 1 shall not be admitted into evidence. [ 65 ] I have requested Crown counsel to provide an edited version of Statements No. 2 and 3 which deal with the presence of guns and they will be marked as exhibits. [ 66 ] Finally, having concluded that portions of Statements Nos. 2 and 3 having to do with the presence of guns in the back of the truck are admissible for the truth of their contents, I have provided the defence with one more opportunity to have Ms.

Vader produced for cross- examination before finally marking the edited Statements having to do with the presence of guns. Heard on the 29 th day of April, 2016 Dated at the City of Edmonton, Alberta this 12 th day of May, 2016. D.R.G. Thomas J.C.Q.B.A. Appearances: Mr. Ashley Finlayson, Q.C., Mr. Jim Stewart, and Ms. Eman Joumaa (Crown Prosecutors – Specialized Prosecutions Branch) for the Crown (Applicant) Mr. Brian A. Beresh, Q.C. and Mr. Nathan Whitling (Beresh Cunningham Aloneissi O'Neill Hurley) for the Accused (Respondent)