R v Blanchard, 2016 ABQB 615

Court of Queen’s Bench of Alberta Citation: R v Blanchard, 2016 ABQB 615 Date: 20161102 Docket: 150463008Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Lance Blanchard Accused _______________________________________________________ Reasons for Judgment on Prior Statements of the Honourable Mr. Justice Eric F. Macklin _______________________________________________________ Introduction [ 1 ] The Accused made statements to the police when he was removed from the scene of the incidents which are the subject of the charges against him.

As well, he made a statement in the back of the police vehicle after arrest, at the police station while being photographed, and during his videotaped interview by police. [ 2 ] Defence counsel wishes to adduce those statements during cross-examination of police witnesses called by the Crown at trial. The Defence alleges that police were negligent in their investigation of the matter and biased against the Accused, and seeks either an acquittal or a stay. Counsel asserts that the Accused’s statements are relevant to allegations of negligent investigation. Positions of the Parties

[3] Defence counsel relies on R v Grant, 2009 SCC 32, [2009] 2 SCR 353, R v Scott, 2016 ABPC 226, [2016] AJ No 1035, R vBerner, 2012 BCCA 466, [2012] BCJ No 2408, Chartier v Attorney General (Quebec), (SCC), [1979] 2 SCR 474,[1979] SCJ No 56 and R v Edgar, 2010 ONCA 529, [2010] OJ No 3152, leave denied [2010] SCCA No 466 in support of his positionthat a voir dire is not required to determine voluntariness in these circumstances.

He submits that the voluntariness rule does not apply tothe defence; it only applies to statements made out of court by an accused to a person in authority proffered by the Crown: SNLederman, AW Bryant, MK Fuerst, The Law of Evidence in Canada, 4th ed (Markham, Ontario: LexisNexis, 2014) at 233-36, 436.

Itmay also be admissible under an exception to the hearsay rule. [4] Defence counsel submits that the exculpatory statements in question are necessary and reliable and therefore should beadmitted under the principled approach to hearsay for the purpose of showing what the officers were told, and consequently whetherthey properly pursued the investigation. Defence emphasizes that the statements are not intended to be admitted for the truth of theircontents. [5] The Crown argues that the statements are inadmissible at this point in the trial.

In addition to Edgar, the Crown cites R vKeeler, 1977 ALTASCAD 126 , [1977] 5 WWR 410, [1977] AJ No 785 (SC AD) and other cases in support of its position thatprior consistent statements by an accused are generally inadmissible. It submits that although there are exceptions to that rule, noneapplies here.

The Crown also cites “Hearsay: Out of Court Utterance by Accused”, Mack Crim LB 2016-05 (WLNext, March 2016). [6] Defence counsel argues that the statements at issue in cases such as Edgar were being tendered for the truth of their contents.Here, the only purpose is to show what the officers had been told by the Accused. [7] Defence counsel raised the same argument during the preliminary inquiry but was denied the opportunity to adduce thestatements.

In the transcript excerpt provided by counsel, the preliminary inquiry judge referenced discussions of the issue in SC Hill etal, McWilliams' Canadian Criminal Evidence, 5th ed (Toronto: Canada Law Book, 2013-) and D Watt, Watt's Manual of CriminalEvidence (Scarborough, Ont: Carswell, 1998-). It does appear, however, that the ruling was later relaxed, in part, with respect to oneparticular line of questions.

Law [8] The Crown referred to the decision in Keeler at para 8 in which the Alberta Court of Appeal discussed the general ruleagainst admissibility of out-of-court exculpatory statements by an accused and outlined the traditional exceptions, stating: Whatever the English practice may be, I have concluded in Canada that what the accused said upon his arrest is not admissible by theaccused by calling the person to whom it was made unless it is part of the res gestae or is called to rebut a suggestion of recentfabrication. [9] The law in this area remained relatively static until the Ontario Court of Appeal’s decision in Edgar, further explained in R vLiard, 2015 ONCA 414, [2015] OJ No 3000 at paras 44 to 50, leave denied [2015] SCCA No 402. [10] In Edgar, the Court discussed the English approach and broadened the potential admissibility of such statements in Canadianlaw.

The Court at para 66 rejected a blanket exclusionary rule, stating that if a statement has probative value, it should only be excludedif there are sound reasons of law or policy to do so. [11] In Liard, the Court summarized and explained its decision in Edgar.

In both decisions, the Court confirmed that anexculpatory out of court statement given by an accused is generally inadmissible because: it is hearsay; it may be fabricated; admitting itwould impair the goal of trial efficiency; it will have minimal or no probative value; and admitting it would amount to impermissibleoath helping. [12] The exceptions to the exclusionary rule outlined in Edgar and Liard where the accused seeks to adduce his own statementinclude: 1. a statement adduced to rebut an allegation of recent fabrication; 2. a statement made as part of the res gestae; and 3. an accused's spontaneous out-of-court statement made on arrest or when first confronted with an accusation of a crime. [13] The spontaneous statement in reaction to an accusation is only admissible if the accused testifies and can therefore be cross-examined.

Once the accused has testified, defence may call the police officer who heard and recorded the statement to verify the fact thatit was made. [14] The Court in Edgar and Liard recognized that the hearsay and fabrication rationales for excluding the prior consistentstatement evaporate where the accused exposes himself to cross-examination. Such statements are evidence of an accused's reaction tobeing accused of a crime and are relevant to show consistency with an accused's trial testimony.

Therefore, although they are notadmissible for the truth of their contents, they are relevant to an accused's credibility and as a piece of circumstantial evidence bearing onan accused's guilt or innocence. In neither of those cases were the statements admitted for the truth of their contents.

The Court acceptedthe proposition that an accused's immediate reaction to an accusation of a crime may be more reliable and more probative than theaccused's testimony given years later in a courtroom. [15] The Court in Liard at para 50 summarized the three requirements to put into evidence an accused's spontaneous out-of-courtstatement made on arrest or when first confronted with an accusation of a crime: 1. the accused must testify;

2. the statement must be made when the accused was arrested or when first accused of committing a crime; 3. the statement must be spontaneous. [ 16 ] In Liard , the main issue on appeal was whether the accused’s statement was spontaneous as it occurred 13 hours after arrest. It was found to be spontaneous.

While a number of reasons were given, it is noteworthy that the Accused was first questioned as a witness and it was shortly after she was formally charged with murder that she gave the statement sought to be introduced. [ 17 ] The Court in Edgar at para 73 stated that as a practical matter, once the accused has testified, he or she should be entitled to call in reply the police officer who heard and recorded the statement to verify to the jury the fact that it was made. [ 18 ] While the Court in Edgar outlined three exceptions to the general rule of inadmissibility, it held that out-of-court statements can be admitted in evidence under the principled approach to hearsay where they are necessary and reliable: R v Starr , 2000 SCC 40 , [2000] 2 SCR 144.

Therefore, it left the door open to other potential bases for admission. Analysis [ 19 ] Defence counsel is attempting to lay the foundation for a defence based on negligent investigation. [ 20 ] The question before the Court is whether the Accused’s prior exculpatory statements are admissible during cross-examination of a witness called by the Crown in its case at trial and before the Accused is called upon to testify.

The Accused seeks the admission of his exculpatory statements into evidence without his having to endure the rigours of testifying and submitting to cross-examination. [ 21 ] Based on the submissions of counsel, I accept for the purposes of this decision that the statements in issue are relevant to the Defence’s questioning of the integrity and effectiveness of the police investigation, and therefore they are relevant to the question of the Accused’s guilt or innocence. [ 22 ] While the Court has no specific knowledge of the substance of the prior statements, the Defence acknowledges that they are exculpatory.

It must be assumed that they are consistent with the defence put forward by the Accused. In that sense, they are “prior consistent statements”. [ 23 ] Counsel argues that this evidence is relevant to the trial proper in the sense that it will assist him in establishing the Accused’s innocence. He emphasizes that the statements, although exculpatory, are tendered not for the truth of their contents, but to show what the officers knew. In this respect, he distinguishes this case from Keeler , Edgar and Liard .

In my view, this case is only distinguishable from those in the sense that none of them raised the same defence. As here, however, the statements in those cases were not being adduced for the truth of their contents. [ 24 ] The Court in Edgar and Liard held that unless an accused’s prior exculpatory statement is being adduced to support one of the three exceptions to the exclusionary rule, then it is generally not admissible. [ 25 ] There is no suggestion in this case of recent fabrication, nor has it been argued that the statement is part of the res gestae .

In my view, the only potentially applicable Edgar exception to the general rule against admissibility at trial of these statements is as spontaneous out-of-court statements made on arrest or when first confronted with an accusation of a crime. [ 26 ] Although one or more of the Accused’s statements in issue might be characterized as spontaneous statements made on arrest, in my view the rationale for that exception does not fit well with the purpose for which Defence wishes to adduce the statements. The Court in Edgar noted that a spontaneous exculpatory statement may have probative value.

If so, it should only be excluded if there are sound reasons of law or policy to do so. [ 27 ] However, where the statements may have probative value, the reasoning in Edgar did leave the door open to admission under the principled approach to hearsay. [ 28 ] In this case, Defence wishes to pursue an allegation of negligent investigation. The statements in question may have probative value relevant to the Accused’s innocence or guilt in the sense that the Accused hopes to establish that relevant evidence was ignored or overlooked by the police.

In my view, this purpose may be considered a fourth exception to the exclusionary rule regarding an accused’s prior statement. Accordingly, the statements should only be excluded if there are sound reasons of law or policy to do so. [ 29 ] To establish necessity, there must be no other way for the evidence to be properly put before the Court.

In my view, the statements in question here cannot be considered necessary as the defence has not exhausted all other means of adducing this evidence at trial. [ 30 ] Defence counsel argues that a finding of necessity can be made, however, where the only alternative for adducing that evidence is for the Accused to testify. He argues that it is unfair to essentially compel the Accused to testify for this limited purpose and subject him to cross-examination when he otherwise may have chosen not to testify. I would note that the same argument could easily have been made in Edgar and Liard .

Nevertheless, those Courts also considered it mandatory that an Accused testify before his prior exculpatory statements could be adduced in evidence. [ 31 ] While the Defence suggests that the Accused should not be required to testify as there is no intention of relying on the truth of the contents of the statements, there is clearly an intent to suggest that the Accused did, in fact, allege specific exculpatory facts in his statements to the police. [ 32 ] In my view, the Crown has the right to test the Accused on whether he did in fact provide certain information to the police that they were then duty bound to investigate.

Further, the Crown is entitled to challenge the Accused as to whether the information provided

was, in fact, false. Although Defence narrowly defines the issue as being what the police knew, the veracity of the Accused’s statement is ultimately relevant to the issue of negligence and, in particular, causation. How could the police be faulted or the Accused prejudiced if the police failed to follow through by investigating information which was known by the Accused to be untrue? [ 33 ] In my view, the same concerns noted in Edgar and Liard arise in relation to admission of these statements. Those concerns can be largely mitigated through cross-examination.

As noted in Edgar , the hearsay rationale for exclusion evaporates where the accused takes the stand. As well, the risk of fabrication can be addressed through cross-examination. [ 34 ] The requirement for the Accused to testify is justified in this case. The Crown is entitled to cross-examine the Accused as to the contents of the statements he made.

The Accused must subject himself to the rigours of testifying and cross-examination so that the Crown can test the veracity of his allegation of what was actually said to the police and whether the information had the requisite air of plausibility such that it should have been investigated. [ 35 ] Consequently, until such time as the Accused takes the stand, the statements are inadmissible.

Further, an undertaking to testify will not suffice - the Court in Edgar held that the trial judge had not erred in refusing to admit the evidence before the accused had actually taken the stand, despite having undertaken to testify. After all, the Accused’s instructions to his counsel can always change before he takes the stand. Conclusion [ 36 ] The Application by the Accused for the admissibility of his prior exculpatory statements is premature. It is denied at this time. Heard on the 31 st day of October, 2016. Dated at the City of Edmonton, Alberta this 2 nd day of November, 2016. Eric F. Macklin J.C.Q.B.A.

Appearances: Pat Innes, QC for the Crown Thomas Engel for the Accused