R v Blanchard, 2016 ABQB 652

Court of Queen’s Bench of Alberta Citation: R v Blanchard, 2016 ABQB 652 Date: 20161123 Docket: 150463008Q1 Registry: Edmonton Between: Her Majesty the Queen Crown/Applicant - and - Lance David Blanchard Accused/Respondent Restriction on Publication Preliminary Inquiry – See the Criminal Code,

section 539 . By Court Order, this decision and the evidence given in the preliminary inquiry must not be published, broadcast, or transmitted in any way. NOTE: This decision is available from the court file, and it may be published after the accused is discharged after a preliminary inquiry or, if the accused is committed to stand trial, after the end of the trial. _ Editorial Notice : The restriction expired on December 16, 2016. ______________________________________________________ Reasons for Judgment on the Admissibility of the Preliminary Inquiry Testimony of the

Honourable Mr. Justice Eric F. Macklin _______________________________________________________ I Introduction [1] These are the reasons for my oral decision of November 18, 2016 allowing the Preliminary Inquiry evidence of the deceasedComplainant to be admitted as evidence in the Accused’s trial. II Background [2] The Accused faces nine counts including: kidnapping, unlawful confinement, aggravated sexual assault, uttering threats tocause death or bodily harm, attempted murder, and possession of a prohibited weapon.

The offences are alleged to have occurred on June16, 2014. [3] The Preliminary Inquiry occurred in June 2015. [4] The Complainant was shot and killed on December 12, 2015 in an unrelated matter. [5] The Crown applies for admission of the Complainant’s Preliminary Inquiry testimony under s. 715 of the Criminal Code,RSC 1985, c C-46 or the principled exception to the hearsay rule. [6] The Accused opposes the application on the grounds that: - the Complainant’s testimony was given in circumstances that do not provide sufficient guarantees of trustworthiness - it has not been proven that the testimony was given under oath; - there has been unfairness in the manner in which the evidence was obtained; and - the prejudicial effect of the evidence will exceed its probative value and therefore its admission would adversely affect the fairnessof the trial.

III Argument A Accused’s Position [7] Defence counsel points to the requirement in s. 540(1) that preliminary inquiry evidence be taken under oath, and argues thatthere were occasions during the audio recording when the administration of the oath was inaudible or unintelligible. Defence submitsthat the Crown bears the onus of establishing that the evidence was taken as required by s. 540. As well, defence submits that thetranscriptionist works from the recording, and therefore notations in the transcript are only as reliable as the recording.

As for thepresumption that the clerk and the judge would regularly ensure that the oath was properly administered, defence counsel argues that therecording informs whether the presumption of regularity should be applied in this case. [8] Defence counsel further argues that the requirements of s. 545(1)(

b) were not met for remanding the Complainant during thePreliminary Inquiry. He submits that there was no evidence that the Complainant refused to answer questions, and there is no lawsupporting the jailing of a complainant due to intoxication or strange behaviour. The public interest and the administration of justice arenot considerations under s. 545(1)(b). It does not contemplate remanding a witness due to the witness’ transience. [9] Defence further argues that the message to the Complainant implicit in the order to remand her was that she would stay injail unless she cooperated with the Crown.

On June 3, 2015, Det. Reule told her: “We need to make sure you show up to court.Obviously we don’t want a witness warrant going out and you are our complainant”. As well, defence counsel suggests that some of thediscussions between Det. Koshowski and Det. Reule show that the motivation for jailing the Complainant from Friday, June 5 to Sunday,June 7, 2015 may have been that neither the Crown nor the EPS would cover the expense of a hotel.

Defence counsel submits that ifthere was no jurisdiction to conduct the Preliminary Inquiry in this fashion, then the proceedings are invalid and the evidence isinadmissible. [10] Defence counsel also asserts that there was no basis for the use of a witness screen under s. 486.2(2). He submits that thePreliminary Inquiry Judge did not consider the relevant factors, and there was no evidentiary basis for the order, citing R v PM (1990), (ON CA), 1 OR (3d) 341, [1990] OJ No 2313 (CA). Defence argues that no one addressed whether the Complainantwas unable to provide a full and candid account without a screen.

Defence points to her disparaging and threatening comments to theAccused as evidence that she was not afraid or intimidated by him.

[11] Defence counsel further argues that even if the Preliminary Inquiry testimony satisfies the criteria under s. 715(1), the Courtshould exercise its discretion to exclude the evidence as unreliable hearsay. Defence also submits that the Court must be satisfied on thisvoir dire that the Complainant’s Preliminary Inquiry evidence was voluntary. [12] Defence counsel cites R v Reeves, 2009 YKTC 25 at para 31, [2008] YJ No 117, in which the Court set out a number offactors as being relevant in determining threshold reliability under the principled approach to hearsay.

Counsel also refers to R vOmeasoo, (AB KB), [1994] AJ No 1094, 161 AR 93 (QB) and R v Solic, 2003 ABQB 1069, 389 AR 77 for theproposition that intoxication can affect the reliability of a hearsay statement. [13] Counsel submits that the following are relevant to the Complainant’s credibility and the reliability of her testimony: - the Complainant’s unexplained behaviour both at the time of her statements to police (KGB Statements) and the PreliminaryInquiry and the state’s failure to determine its causes; - Crown’s failure to disclose audio and audio/video recordings and Det.

Koshowski’s report of police interactions with theComplainant in June 2015 before she testified at the Preliminary Inquiry; - the implied promises and threats associated with the order to remand the Complainant, which influenced her narrative. [14] Defence counsel submits that the admissibility of the June 2015 Preliminary Inquiry testimony is linked to issues surroundingthe obtaining of the KGB Statements in June 2014 because the Complainant reviewed her second KGB Statement in preparation fortestifying at the Preliminary Inquiry, and her behaviour in June 2015 was strikingly similar to her behaviour in June 2014. [15] Defence counsel points to certain evidence as showing that the Complainant’s behaviour and statements raised obviousconcerns that she was suffering from drug intoxication or withdrawal or mental illness or a combination thereof: - evidence from the Accused that she told him she was either on crack or “coming down” at the time of the alleged offence, and thatit was snowing outside; - the Complainant’s evidence that when she went into the apartment building it was dark but when she left with police it wasdaylight; - evidence from the initial contact with police on June 16, 2014 until the point in time at which Det.

Peachman and Det. Innes lefther at the Bissell Centre on June 17, 2014; - initial contact by Cst. Crobar to the end of her testimony at the Preliminary Inquiry; - the Complainant’s evidence that she had used crack; - evidence of Kenneth Daniels and Kala Delorme that they both sold her crack during relevant periods of time; - evidence from the officers who dealt with the Complainant, and Rayanne Fleming who said that the Complainant’s condition waslikely due to withdrawal from methamphetamine on June 3, 4 and 5, 2015; - evidence of Cst.

Crobar that he had encountered her in the past when she was definitely intoxicated by drugs or alcohol; - evidence from Dr. Haager that he suspected drug use was responsible for her behaviour and that her inability to maintainconsciousness was not explained by fatigue; - the Complainant was on AISH but denied any physical handicap, leading to the inference that she was severely handicapped due toa mental problem, which would include addiction; and

- her mental problem was not due to a lack of intelligence as she said she did well in school, and she was articulate. [16] Defence counsel submits that the police were, at a minimum, wilfully blind to the indicia of drug use or mental illness; theComplainant’s behaviour had an impact on both her credibility and reliability and the police were duty bound to investigate further thecause of her condition. [17] Defence argues that the police were highly motivated to prosecute the Accused and treated the Complainant in anextraordinary way, making her feel they were going to help her while telling her things about the Accused, suggesting to her that theywould accept a story from her that she was the victim. [18] Defence counsel asked the Crown to ensure that all interactions between the police and the Complainant before thePreliminary Inquiry were audio or audio/video recorded.

Defence asked the Crown for disclosure of the recordings and Det.Koshowski’s report relating to interactions before defence concluded the cross-examination of the Complainant.

Defence counsel did notreceive these until June 26, 2015, long after the Complainant had finished testifying, due to what defence describes as “the Crown’sinexplicable, unreasonable and rigid adherence to the electronic disclosure process”. [19] Further, defence notes that the Preliminary Inquiry Judge indicated his intention to conclude cross-examination of theComplainant before June 12, 2015, so that she would be released from jail by the next weekend. Defence states that this was a situationcreated by the Crown.

The Crown took the position that the Court should not postpone the Complainant’s conclusion until afterdisclosure was made. Defence counsel concluded cross-examination of the Complainant without access to the recordings and Det.Koshowski’s report. There were many areas of Det. Koshowski’s report that defence would have explored on cross-examination at thePreliminary Inquiry.

Defence submits that the failure to disclose these items breached the Accused’s s. 7 Charter rights and constitutedan unfair limit on the opportunity to fully cross-examine the Complainant. [20] Defence counsel recognizes that the circumstances leading a court to find that preliminary inquiry testimony would operateunfairly to an accused will be relatively rare: R v Potvin, (SCC), [1989] 1 SCR 525, [1989] SCJ No 24.

However, hesubmits that the Complainant’s Preliminary Inquiry evidence was not given in circumstances which provide sufficient guarantees of itstrustworthiness: R v Hawkins, (SCC), [1996] 3 SCR 1043, [1996] SCJ No 117, R v KGB, [1993] 1 SCR 630. Therehas been unfairness in the manner in which the evidence was obtained, and the admission of the evidence would affect the fairness of thetrial.

Defence submits that, after weighing the concerns of fair treatment of the Accused and society’s interest in the admission ofprobative evidence in order to get at the truth of the matter, the prejudicial effect of the evidence in question exceeds its probative value.

B Crown’s Position [21] Crown cites R v Hamlink (1912), (ON SC), 19 CCC 493, 26 OLR 381 (HC), R v Djambazov, 2007 ONCJ107, [2007] OJ No 1001, R v Scott, 1980 ABCA 299, [1980] AJ No 645, and R v Molina, 2008 ONCA 212, 231 CCC (3d) 193 insupport of its argument that the presumption of regularity applies in this case. [22] The Crown submits that the Preliminary Inquiry Judge complied with the requirements of s. 540(1), and the transcriptionistrecorded that each time the Complainant was called to the stand to give or resume giving evidence, she was sworn or acknowledged thatshe was still under oath.

This was corroborated by the FTR notes created by the judicial clerk, denoting at the times the witness took thestand: “witness sworn” or “witness acknowledges still under oath”. [23] Crown submits that the fact that it is difficult to hear the audio of some of the times when she was sworn or re-sworn oracknowledged being under oath is not inconsistent with the transcript and clerk’s notes. As well, the Judge is presumed to have beenmindful of his obligation to ensure that witnesses giving evidence in this Preliminary Inquiry did so under oath.

Crown counsel andDefence counsel were present each time the Complainant took the stand and the Transcript reveals no concerns were raised at any pointby either officer of the Court that this required procedure was at any point overlooked. [24] As for the screen and the remanding of the Complainant on June 5, 2015, Crown argues that the Preliminary Inquiry evidenceof the Complainant shows that she was, for reasons unclear at the time, unable to testify in the proceedings, despite repeated exhortationsby the Crown and the Judge. The Judge had the benefit of observing the Complainant. [25] Ms.

Fleming’s advice was sought on her observations of what might be impeding the Complainant’s ability to stay awake andgive her evidence. The Judge found that the Complainant was intimidated and ordered that she testify from behind a screen. [26] When the screen did not substantially improve the Complainant’s ability to answer questions put to her by the Crown, theCrown sought an order pursuant to s. 545(1) to have her remanded in custody. The Judge considered submissions of legal counsel (DianaGoldie) who provided advice and counsel to the Complainant until she finished testifying. Ms.

Goldie indicated that she understood fromthe Complainant that she felt afraid and intimidated by the Accused. Defence counsel opposed the application on the same grounds nowraised.

The Complainant was specifically remanded to the medical unit of the Edmonton Remand Centre. [27] Crown notes that when the Complainant first appeared on the witness stand after having been remanded, she presented in analert state, apparently ready to listen to and answer questions. [28] Crown argues that there is no evidence to support the argument that the Complainant’s evidence was tainted as a result oftestifying from behind a screen or being held in remand.

Crown notes that the Accused has cited no law or facts to support an argumentthat his right to full cross-examination was negatively impacted or that he was otherwise prejudiced by the orders. [29] As for the audio and visual recordings of the Complainant created from June 3 to 5, 2015, Crown observes that theserecordings were created in response to the demand of the Accused during the Preliminary Inquiry that such recordings be created of all

interactions between the Complainant and the police. Thus, the police were actively complying with his request as the PreliminaryInquiry was proceeding. Much of what was captured in these recordings was disrespectful of the privacy interests of the Complainant,but a serious effort was made in order to be able to give defence counsel the evidence he was seeking as disclosure in the form he wantedit and in as timely a manner as possible. Defence was provided with the 12 DVD recordings of Det. Koshowski before the PreliminaryInquiry concluded. Det.

Koshowski testified at the Preliminary Inquiry and was available to answer all questions of the defencerespecting her involvement with the Complainant. Det. Reule, who accompanied Det. Koshowski at various times with the Complainantbetween June 3 and 5, 2015, attended the Preliminary Inquiry on numerous dates to give his evidence, but due to the lengthy, extendednature of the Preliminary Inquiry, he was finally unable to attend as he was no longer available. By this point, the Preliminary Inquiryhad run well over two weeks beyond the original two weeks set for its hearing. [30] Cst.

Crobar testified at the Preliminary Inquiry and was questioned at length by defence about his interaction with theComplainant after he located her on June 3, 2015 when her subpoena to attend the Preliminary Inquiry was outstanding, and about anyother observations of her or past interactions with her. Det. Peachman also testified at the Preliminary Inquiry regarding his and hiscolleague Det. Innes’ interaction with the Complainant after she was finished being interviewed by Det. Gordon on June 17, 2014.

Det.Gordon, who conducted the original interview with the Complainant on June 17, 2014, also testified. [31] Based on the excerpts from those recordings during this voir dire as proffered by the Accused, Crown submits that the onlyinformation to be gleaned from them is that the Complainant was very tired during the day, but otherwise cooperative and coherent inJune 2015.

The recording excerpts also demonstrate her stress and distress in relation to reviewing the evidence and coming to testify atthe Preliminary Inquiry. [32] The Complainant was described by each witness who dealt with her, whether on June 16 to 17, 2014 or on June 3 to 8, 2015 asbeing cooperative, coherent, comprehensible and not exhibiting signs of intoxication. She did not smell of alcohol. She did not havealcohol in her blood as determined by the hospital on June 16, 2014. She denied drug or alcohol use to the first police officer to take herstatement of events, Cst. Kerr. Dr.

Haager, the emergency room doctor who treated the Complainant shortly after 8:00 p.m. on June 16,2014, found her to be asleep and very hard to arouse; she cried out in pain when she was awake. However, Shawn Haryett, theEmergency Medical Technician (EMT) who responded to the scene of the alleged crime on June 16th, 2014 and dealt directly with her,described her as coherent, cooperative and having a 15/15 Glasgow Coma Score. [33] Dr. Haager acknowledged that the Complainant could have sustained a concussion and that the concussion protocol was notfollowed.

He was unwilling to explain the Complainant’s lack of alertness as being drug-induced or drug-withdrawal-induced. Heacknowledged that her presentation could have been caused or contributed to by exhaustion and trauma. As with others unfamiliar withthe Complainant, surmising occurred relative to the issue of her very tired presentation. She was extremely tired on all dates but noevidence exists to connect this to drug or alcohol use or abuse.

Rayanne Fleming, an inner-city victim support social worker, called by theDefence on the Preliminary Inquiry admissibility voir dire, testified that the Complainant was very sleepy and hard to rouse during thetime when Ms. Fleming was initially assisting her to review her video interviews to prepare for the Preliminary Inquiry.

However, Ms.Fleming also testified that when she continued her assistance in the court house cell area after the Complainant was remanded intocustody, she had no problem remaining awake and that she was very clear, very articulate and coherent. [34] Crown argues that the charges against the Accused are very serious. The Complainant was able to give detailed evidence ofthe alleged incident and to remain a consistent and able historian of the facts she alleged. Her evidence is the only direct evidence of theevents that took place on June 16, 2014 between her and the Accused.

IV Legal Framework [35] Preliminary inquiry testimony may be admissible under s. 715(1) of the Criminal Code, or under the principled exception tothe hearsay rule: R v Hawkins, (SCC), [1996] 3 SCR 1043, [1996] SCJ No 117. [36] Section 715(1) provides that a deceased witness’ preliminary inquiry evidence is admissible if it was taken in the presence ofthe accused, unless the accused proves that he did not have full opportunity to cross-examine the witness. [37] The first consideration in this regard is whether the presiding justice improperly restricted cross-examination at thepreliminary inquiry.

A denial or restriction can only have taken place if the accused intended or desired to pursue certain questions andwas frustrated in that intention or desire: R v Potvin, (SCC), [1989] 1 SCR 525, [1989] SCJ No 24 at para 28.

It is theopportunity to cross-examine and not the fact of cross-examination which is crucial if the accused is to be treated fairly: Potvin at para19. [38] A full opportunity to cross-examine under s. 715 does not generally include a right to cross-examine regarding events whichhave occurred since the preliminary inquiry: R v Cole (1980), (ON CA), 53 CCC (2d) 269, [1980] OJ No 595 (CA).Nor does an accused’s ignorance of potentially useful information, or discovery of such information after a witness has testified, deprivethe accused of a full opportunity to cross-examine within the meaning of s. 715(1): R v Michaud (2000), (NB CA),144 CCC (3d) 62, [2000] NBJ No 75 at paras 20-21 (CA), R v Alcantara, 2015 ABCA 259, [2015] AJ No 883 at paras 62-63. [39] Inability to effect a complete cross-examination of a witness at preliminary inquiry due to the witness' failure of memory doesnot bar reception of the testimony as a prior inconsistent statement for substantive purposes: R v Biscette (1995), 1995 ABCA 234, 99 CCC (3d) 326 (Alta CA); aff’d (SCC), [1996] 3 SCR 599, 110 CCC (3d) 285.

Similarly, the refusal of awitness at preliminary inquiry to answer certain questions in cross-examination does not negate the opportunity to cross-examine: R vDevlin (1976), (NB CA), 37 CRNS 54, 32 CCC (2d) 334 (NB CA). [40] Defence is not deprived of a full opportunity to cross-examine a witness at a preliminary inquiry merely because defencecounsel, for tactical reasons, has conducted the cross-examination of a witness differently than he would have at trial: Potvin, R vDavidson (1988), (ON CA), 42 CCC (3d) 289 (Ont CA); leave denied (1989), 103 NR 399, 37 OAC 91 (SCC).

[41] There is a discretion to disallow use of the prior testimony even if the s. 715 conditions for admissibility are met: Potvin, R vThompson (2000), (ON CA), 146 CCC (3d) 128, [2000] OJ No 2270 (CA). In Potvin at para 30, the Supreme Courtheld that the circumstances supporting the discretion to exclude will be relatively rare and the discretion to prevent unfairness is not ablanket authority to undermine the object of the provision by excluding evidence of previous testimony as a matter of course: Potvin atpara 30.

Wilson J. in Potvin recognized that unfairness in the manner in which evidence is obtained can have a significant effect on thefairness of the trial. She held that the discretion to exclude under s. 715(1) encompasses situation where the testimony was obtained in amanner which was unfair to the accused or where its admission at trial would not be fair to the accused.

However, in both situations thediscretion should only be exercised after weighing the fair treatment of the accused and society's interest in the admission of probativeevidence in order to get at the truth of the matter in issue. [42] As noted, the full opportunity to cross-examine exception does not apply where the failure to cross-examine originates indefence's ignorance of potentially useful information, regardless of the cause of that ignorance. Failures based on such ignorance areanalyzed under the trial fairness requirement and the exclusionary discretion discussed in Potvin.

A failure to disclose that preventedsignificant defence cross-examination may warrant exclusion of the evidence, for example information which could have been used toimpeach the credibility of the witness: R v Lewis, 2009 ONCA 874 , [2009] OJ No 5294, 249 CCC (3d) 265 (Ont CA); R vBarembruch, (BC CA), [1997] BCJ No 2029, 119 CCC (3d) 185 (BCCA). [43] The Alberta Court of Appeal in R v Alcantara, 2015 ABCA 259, [2015] AJ No 883 at para 65 commented that althoughcommon-law concepts such as balancing prejudice against probative value still have their place, they cannot be treated as a simple repealof s. 715 in some circumstances.

V Analysis [44] It is not disputed that the Complainant is deceased, nor that the evidence was taken in the presence of the Accused. A. The Oath [45] Defence counsel argues that the onus is on the Crown to establish that the Complainant’s testimony was given under oath, asrequired by s. 715. He argues that the audio recording of the Complainant’s testimony does not clearly indicate that the oath wasadministered to her before her testimony.

Defence counsel says that the administration of the oath was “inaudible or unintelligible” onoccasion. [46] The transcript and clerk’s notes indicate that the Complainant was sworn. On listening intently to the audio recording of thatportion of the Preliminary Inquiry, it is clear to this Court that the oath was administered to her. The audio recording and transcript alsoreflect that the Complainant acknowledged being under oath at different times when Court was back in session. [47] Additionally, a judge must be deemed to be aware of the requirement that preliminary inquiry testimony is to be taken underoath.

In Molina, the Court adopted JH Wigmore’s conditions for the application of the presumption of regularity set out in Evidence inTrials at Common Law, 3d ed (Boston: Little, Brown, 1940) vol IX at 488: 1. The matter that is the subject of the presumption must be more or less in the past and incapable of proof by easily procuredevidence; 2. What is involved is a mere formality or detail of required procedure, in the routine of litigation or of a public officer’s action; 3.

It involves, to some extent, the security of apparently vested rights, so that the presumption will serve to prevent an unwholesomeuncertainty; and 4. The circumstances of the specific case add some element of probability. [48] I do note that in R v Scott, 1980 ABCA 2, [1980] AJ No 645, the Court held that very great care must be taken in applying thepresumption of regularity in criminal proceedings. For example, where a person is charged with breach of a recognizance, a court mustbe careful in applying the presumption with respect to the issuance of the recognizance.

However, those concerns are diminished wherethe presumption of regularity is not relied on in relation to the question of whether the gravamen of the offence has been established. [49] All four Wigmore conditions are met in this case. Here, the presumption is not raised in relation to any element of theoffences charged against the Accused, but rather in relation to whether the Complainant had promised to tell the truth throughout hertestimony in the Preliminary Inquiry.

No one present at the proceedings, neither counsel, the clerk, the transcriber, nor the Judge, raisedany issues with respect to the lack of an oath, or that the Complainant may not have understood that she was required to tell the truth. [50] In the circumstances, I find that it is established by the recording that the oath was properly administered. However, even if Iwere not so persuaded, in my view the Crown is entitled to rely on the presumption of regularity in addition to the recording inestablishing that the testimony was taken under oath. The presumption has not been rebutted.

I conclude that the Complainant testifiedunder oath.

B. The Screen [51] The behaviour of the Complainant at the beginning of the Preliminary Inquiry caused the Crown to apply for an Orderallowing her to testify behind a shield on the basis that she was fearful and intimidated by the Accused. It should be noted that theComplainant was slightly over five feet tall and weighed around 109 pounds at the time. While the Accused’s weight is not in evidence,he is around six feet, six inches tall. [52] The Preliminary Inquiry Judge heard submissions from Crown, defence counsel, and duty counsel appointed to represent theComplainant on this issue.

In his Reasons, he stated (626/34 to 627/9): Okay. I heard the representations. I’m of the view in this case that a screen is justified. Having regard to the nature of the offences here,we are dealing with very serious offences for which the allegations are that these offences were as against the Complainant. Attemptedmurder, kidnapping, unlawful confinement, aggravated sexual assault and death threats. These are very serious allegations. Very seriouscharges. It was clear to me on Friday that the Complainant was intimidated, was afraid.

It was clearly evident as she was being escorted out intocustody on Friday, that she was very afraid. And my concern is that we are not going to have her meaningful participation if she is facedwith viewing Mr. Blanchard. And that fact will have an impact on her testimony because of her fear and the fact that she does feelintimidated and putting a screen in these circumstances, in my view, is the appropriate way to deal with it for us to move on and allowher to focus on her testimony as opposed to focusing on Mr. Blanchard.

So I will permit the screen in this case. [53] The defence argues that the Order was illegal as there was no “evidentiary basis to support that these factors prevented herfrom giving a full and candid account”. Further, he submits that the conclusion of the Judge that she was fearful and intimidated flies inthe face of the Record.

Defence counsel indicates points during the Preliminary Inquiry at which the Complainant made disparaging andthreatening comments to the Accused and looked out from behind the screen at him. [54] There is no doubt that the Complainant made loud disparaging comments about the Accused and also threatened him. She didso at a time when he was either in a jail cell near her or otherwise under guard. Her evidence was that she had never met the Accusedbefore the incident in question. There is no evidence to suggest otherwise.

It can only be assumed that whatever occurred between themcaused her to be extremely agitated in the presence of the Accused. It also appears to have caused her to be aggressive towards him incircumstances when she would reasonably believe that he would be unable to physically respond. [55]

Section 486.2(2) of the Criminal Code allows a judge to order that a witness testify behind a screen if the judge is of theopinion that the order would facilitate the giving of a full and candid account by the witness of the acts complained of or wouldotherwise be in the interest of the proper administration of justice. [56] The Preliminary Inquiry Judge heard representations from counsel for the Complainant that she felt afraid and intimidated bythe Accused. The Judge also witnessed the Complainant’s reaction to the Accused while she was being escorted into and out of court.

Heclearly expressed his view that she was intimidated and frightened. It is a discretionary order and the Judge exercised his discretion infavour of granting the order.

There was nothing illegal about it. [57] Again, ultimately the question is whether the screen is a factor which should be considered in determining whether thePreliminary Inquiry testimony is admissible in the trial. [58] The absence of an opportunity for the accused to confront the complainant face to face during her testimony does not violates. 7 of the Charter or the presumption of innocence under s. 11(d): R v JZS, 2008 BCCA 401, [2008] BCJ No 1915, aff’d [2010] SCJNo 1, R v Levogiannis (SCC), [1993] 4 SCR 475, [1993] SCJ No 70. [59] There is nothing before the Court to suggest that a witness is more likely to be unreliable or less credible when testifying frombehind a screen.

While not determinative, at least a portion of her testimony could also be seen on a video screen by the Accused.Although the Accused was not always able to view her demeanour when testifying, his counsel was able to do so. I am not persuaded thatthe presence of the screen is relevant to the issue of the admissibility of the Preliminary Inquiry testimony of the Complainant. C.

The Order to remand the Complainant from June 5, 2015 to June 10, 2015 [60] At the conclusion of the court proceedings on June 5, 2015, after the Complainant had begun her testimony, the Crownapplied for an Order for the Complainant to be detained in custody until her testimony on June 8, 2015.

The Crown suggested that theComplainant was not likely to attend Court on her own and that she had “presented in a condition unsuitable for testifying and we don’tknow what the reason is” (495/34). [61] Section 545(1) provides in part: 545(1) Where a person, being present at a preliminary inquiry and being required by the justice to give evidence, . . . (

b) having been sworn, refuses to answer the questions that are put to him, . . . without offering a reasonable excuse for his failure orrefusal, the justice . . . may . . . commit the person to prison for a period not exceeding eight clear days or for the period during which theinquiry is adjourned, whichever is the lesser period. [62] In his ruling, the Preliminary Inquiry Judge determined that he had the authority under s. 545(1)(

b) to order the Complainant’sdetention.

[ 63 ] Defence counsel argues that the detention of the Complainant was illegal and suggests that if this Court does not find that the ruling was inappropriate, then the Crown could obtain an Order for the detention of homeless people at any time simply because there is a concern that the Crown would not be able to locate them if the witness did not voluntarily attend. [ 64 ] This Court does question the jurisdiction of the Provincial Court to grant an Order under s. 545(1)(

b) in the circumstances described. However, while the ruling may have been unfair or improper to the Complainant, she is not before the Court to challenge that ruling. It does not lie in the mouth of the Accused during this application to argue that the evidence given by the Complainant at the Preliminary Inquiry should be inadmissible because she was treated unfairly.

There must be some reason to conclude that the fact of the Complainant’s custody undermined her credibility or reliability, and admitting the evidence would therefore result in unfairness to the Accused. [ 65 ] Defence counsel urges the Court to infer that the Complainant would have believed that unless she testified and cooperated with the Crown, she would stay in jail and have to endure transports between the ERC and the Law Courts and shackles while in Court.

She was clearly told that she was needed in Court but there is no evidence of any threats made to her or any promise or inducement in exchange for her testimony, favourable or not. While it would have been logical to conclude that she would be released once she finished testifying, there is no evidence to suggest that she believed she would only be released if she gave evidence favourable to the Crown.

If any animus arose as a result of the ruling, it would logically be directed against the Crown. [ 66 ] There is no doubt that the Complainant’s problematic behaviour, primarily sleepiness, which is the subject of lengthy discussion by defence counsel, was considerably reduced if not resolved, by the short period of incarceration between her first testimony and the continuation.

The issue for the Court is whether the order had an unfair impact on the Accused, not whether it resulted in evidence which is unfavourable to the Accused. [ 67 ] In short, I find no evidence that there was coercion of the Complainant by an illegal Order such as to render her testimony, and the introduction of it during this trial, unfair to the Accused. [ 68 ] Further, contrary to the submission of defence counsel, I do not consider that a jurisdictional error by the Preliminary Inquiry Judge on this issue would render the entire Preliminary Inquiry evidence of the Complainant invalid and inadmissible in this proceeding.

D. The Complainant’s Behaviour [ 69 ] The Accused is suggesting that the Complainant’s evidence must be considered unreliable, as she exhibited very strange behaviour, both at the time she gave KGB statements to the police and a year later at the Preliminary Inquiry. [ 70 ] The evidence indicates that the police arrived at the Accused’s apartment around 18:15 on June 16, 2014. The Complainant was found bloodied and on the floor in the hallway entrance to the apartment. She was described in evidence by Cst.

Lexi Kerr as being distraught and scared. [ 71 ] The Complainant was taken by Emergency Medical Services to the Emergency department at the Royal Alexandra Hospital. Mr. Shawn Haryett, the Emergency Medical Technician, testified that the Complainant had blood covering her arms and face, and trauma to her face including bruises and lacerations. [ 72 ] The triage notes of Nurse Margaret Wetzstein indicate that the Complainant was brought in with defensive stab wounds to both hands from a knife. She walked in and was put on the stretcher on arrival. She was actively bleeding from her left hand.

She had also had her head hit onto the ground during the assault. She denied drug use that day. Alcohol testing came back negative. [ 73 ] The Complainant was seen in the emergency department by Dr. Haager who testified that she did not appear to have a normal mental status and was fluctuating between falling asleep and crying. He thought she was carrying on strangely and was not answering his questions in a normal manner. He testified that she appeared sleep deprived which would have affected her ability to respond.

When questioned in cross-examination, he acknowledged that she could have shown signs of being addicted to crack cocaine. He was not, however, qualified as an expert in that respect. [ 74 ] Most of the people who came into contact with the Complainant shortly after the incident found her to be coherent and responsive to their inquiries.

There is no doubt, however, that she was hysterical at times and clearly distraught. [ 75 ] The Complainant was discharged from the hospital at 03:50 on June 17, 2014 having been administered various medications, including: 50 mg of Fentanyl at 20:05 50 mg of Fentanyl at 20:22 8 mg of Zofran at 20:30 2g of Ancef at 20:43 50 mg of Fentanyl at 20:55 50 mg of Fentanyl at 21:21 50 mg of Fentanyl at 22:57 600 mg of Ibuprofen at 02:40

Tylenol #3 at 03:45 200 mg of Ibuprofen and 10 tablets “to go” at 03:50 Tylenol #3 and 5 tablets “to go” at 03:50. [ 76 ] Dr. Haager testified as to the effects of medications and how long those effects would continue. Defence counsel cross- examined on this point in the voir dire . [ 77 ] Following attendance at the hospital, the Complainant was taken to police headquarters. At 05:35, she was awakened in order to sign a consent to obtain her medical records. She was clearly fatigued and was allowed to sleep. At 09:20, she was awakened again and provided a Caution.

She was then allowed to sleep again and awakened at 14:54 for a second interview. This lasted until 18:09. [ 78 ] Det. Gordon testified that the Complainant was able to freely converse and there was nothing unusual about her behaviour during the interview beginning at 14:54. He stated that, while her behaviour to that point in time could have been indicative of alcohol or drug use, it also could have reflected extreme fatigue. He had no reason to be concerned about the health or safety of the Complainant after she was released from the hospital.

By that time (14:54), she had recovered sufficiently to be interviewed. [ 79 ] The Court viewed the KGB statement during the voir dire . The Complainant appeared coherent and responsive. She provided descriptive and detailed information as to the circumstances surrounding the alleged incident. She appeared polite, was sobbing at times, and her physical gestures appeared appropriate to the events she was describing. [ 80 ] Much was made during the voir dire of the fact that the Complainant appears in the video recording to take something from below the table and ingest it, possibly a tablet.

Defence counsel suggests that she took non-prescribed drugs at that time. However, the evidence is that she was given at least 15 tablets of painkillers when discharged from hospital. If she did ingest drugs at that time, it would be logical to infer that the tablets in her possession were the painkillers she had received at the hospital on discharge. Moreover, defence counsel conceded that he had the video before questioning the Complainant during the Preliminary Inquiry, but did not question her about this as he had not noticed this act on her

part in the video. [ 81 ] In describing her condition when giving the KGB statement and, particularly, when explaining some discrepancies between the statement and her later evidence at the Preliminary Inquiry, the Complainant testified that she had been falling asleep before the KGB statement because she was tired and “regaining the blood that I lost all over his apartment” (833/34).

She said she was also likely under the influence of Tylenol. [ 82 ] The Accused now suggests that the Complainant’s behaviour is suggestive of “drug intoxication or withdrawal or mental illness or a combination thereof”. [ 83 ] The Accused testified during the voir dire that the Complainant said something to him like “I’m coming down” or “I’ve just done crack” during their interaction on June 16, 2014. Assuming for the purposes of this application that this is true, that statement without more does not temporally relate to her mental state at the time of the KGB statement or the Preliminary Inquiry.

Further, there is no evidence before the Court that a person’s ability to recall or tell the truth regarding an incident would be affected by the fact that the person was on crack or “coming down” from crack at the time of the incident. [ 84 ] While the Complainant did acknowledge using crack cocaine at times, she testified that she did not begin to use crack cocaine until months after the incident of June 16, 2014. This would also have been months after her KGB statement. [ 85 ] Defence called Kenneth Daniels in the voir dire. Daniels is a 38 year old inmate in custody awaiting sentencing.

He has a record including over 125 criminal offences, most of which are crimes of dishonesty such as the forging of documents, obstructing police by giving false names or false identification, forging cheques, committing fraud and stealing property. One of his offences related to providing a fake name to the police so as to have another person blamed for the offence he had just committed. He testified that he would take any opportunity to make money. [ 86 ] Mr.

Daniels testified that he had sold crack to the Complainant on numerous occasions, but also sometimes pills, GHB, and meth, starting in October 2014 until just after the May 2015 long weekend. He testified that he sold drugs to the Complainant on 10 or 12 occasions in total between October and November 2014 and in May 2015. [ 87 ] Mr. Daniels’ testimony as to the dates he sold drugs to the Complainant coincided within a month or so of the date on which the Complainant acknowledged in her testimony having started to take crack cocaine.

Further, she testified that she stopped taking street drugs such as crack cocaine about two and one-half weeks before the Preliminary Inquiry, which would have been around the third week in May. Mr. Daniels testified that he never sold her any drugs after the May 2015 long weekend and, in fact, never saw her again after that weekend. He confirmed he only sold drugs to her in October and November 2014 and May 2015. [ 88 ] The defence also called Kala Delorme to testify in the voir dire . Ms. Delorme is 28 years old and is also currently an inmate.

She testified that she knew the Complainant and had sold her drugs over a period of “like four years” until September 2015. She testified that she sold crack to the Complainant until September 2015. In 2014, she sold to her at least once a week, and by 2015 she sold to her at least three times a week. [ 89 ] Again, drug use in 2014 and 2015 is not inconsistent with the Complainant’s Preliminary Inquiry evidence. I accept that Ms. Delorme may have sold drugs to the Complainant.

However, in my view, her evidence is not probative on the question of whether the Complainant was using drugs either at the time of the incident in question or at the time of the Preliminary Inquiry. [ 90 ] Ms. Delorme stated that she observed that the Complainant, when on crack, “was sketchy, paranoid, anxious and flighty”. Ms.

Delorme did not testify regarding any observations of the Complainant when she was not on crack or withdrawing.

It bears noting that the concern regarding the Complainant’s behaviour during her KGB statement and the Preliminary Inquiry was that she was sleepy at times, not that she was sketchy, paranoid, anxious or flighty. [ 91 ] In short, I do not find that the evidence before the Court supports a finding that the Complainant’s behaviour shortly after the time of the incident, prior to the KGB statement or during the KGB statement was attributable to any drug addiction problem, drug withdrawal problem or mental illness, as suggested by the defence, such that it affected Defence counsel’s ability to cross-examine the Complainant during the Preliminary Inquiry. [ 92 ] Her behaviour prior to the KGB statement was consistent with factors in evidence other than with a drug or a mental health issue.

Based on the evidence before the Court, her “fatigued” condition prior to the KGB statement could have been largely due to her having had little or no sleep, being seriously injured, having received stitches, having her head hit onto the ground, and having taken strong pain killing medication. [ 93 ] The defence has raised similar allegations with respect to the Complainant’s behaviour prior to and at the time of the Preliminary Inquiry.

The Complainant also exhibited fatigue prior to the Preliminary Inquiry and was seen to be sleeping during much of the time she was with the police, and when she was supposed to be viewing her KGB statement. [ 94 ] Rayanne Fleming, a social worker at the Bissell Centre in Edmonton, was the victim support worker who assisted the Complainant when she attended Court on June 5, 2015.

She testified that in her observation, the Complainant had a hard time staying awake to watch the KGB videos and at one point, the Complainant said that she did not need to watch the videos as she remembered what had happened and watching them just made her upset. [ 95 ] Neither Ms. Fleming nor any of the police officers who dealt with the Complainant either around the time of the KGB statement or around the time of the Preliminary Inquiry noticed any smell of intoxicants or any other indicia that the Complainant was under the influence of drugs or withdrawing from drugs.

Some of the officers testified that her appearance of fatigue could have resulted from drug use or withdrawal, but none of them was called as an expert. Even Ms. Fleming, who testified that she may have expressed concern that the Complainant was coming down from drug use at the time of the Preliminary Inquiry, acknowledged in testimony that the Complainant’s symptoms were equally consistent with being fatigued. Ms. Fleming testified that in her experience with homeless persons in the inner city, they often stay up all night walking, as it is too dangerous to sleep outside at night.

During the daytime, they often look for safer places to sleep, such as in parks. Ms. Fleming testified that their lifestyle, combined with the lack of sleep at night and the lack of nutritious food does cause them to be fatigued, and the Complainant’s appearance was as consistent with these factors as it was with drug use. [ 96 ] During her Preliminary Inquiry testimony, the Complainant stated on several occasions that she was always tired. She referred to the river valley as taking a lot out of a person.

When asked whether she remembered a female police officer talking to her at the hospital about what happened, she said that she did not, adding that by that time she was induced with painkillers. [ 97 ] The defence also says that the Complainant was on AISH (Assured Income for the Severely Handicapped) and because she denied any physical handicap, the “only reasonable inference is that she was severely handicapped due to a mental problem, which would include addiction”.

It would require significant speculation to conclude that because the Complainant might have been on AISH, she must have had some form of mental handicap or addiction problem that would inhibit her ability to testify, inhibit her ability to recall events as they occurred or necessarily make her an unreliable witness. [ 98 ] Even assuming for the purposes of this voir dire that the Complainant’s behaviour was due to withdrawal from ingestion of some sort of illegal substance, the fact remains that her incarceration appears to have stabilized her physical condition to the point that she was able to testify during the Preliminary Inquiry. [ 99 ] In my view, having viewed the Complainant’s testimony during the KGB statement and listened to her testimony at the Preliminary Inquiry, it is apparent that once she was rested and fed, she was able to provide clear, coherent, lucid and responsive information.

Her Preliminary Inquiry testimony showed her at times to be intelligent and articulate, as was conceded by the defence in this voir dire . Therefore, whatever use defence counsel may make of her behaviour prior to her incarceration, the evidence before the Court of her prior behaviour does not establish that her testimony during the Preliminary Inquiry was compromised by ingestion of drugs.

As for the reliability of her testimony, no evidence was adduced to the effect that sleepiness due to withdrawal from drugs would affect her perception of the alleged offences, nor to what extent, if any, it would affect her memory of those events. E. The Complainant’s Credibility [ 100 ] While the Complainant did acknowledge using crack cocaine at times, she testified that she did not begin to use crack cocaine until months after the incident in question which would also have been months after her KGB statement. Ms. Delorme’s evidence was that she sold drugs to the Complainant over four years.

The Complainant did indicate during the Preliminary Inquiry that she had used pot for some time, and had been a real “pothead”. Defence counsel cross-examined the Complainant at length during the Preliminary Inquiry on her use of drugs. [ 101 ] Defence raised the fact that the Complainant had been confused as to whether it was dark when she went into the Accused’s apartment building and at one point had thought that it was snowing outside. It was neither dark nor snowing as the incident occurred during the day on June 16, 2014.

When asked about her comment that it was snowing outside, she testified that she was either dreaming or it was the “fluff” from dandelions that she recalled. Again, Defence counsel had an opportunity to canvass this issue with the Complainant in cross-examination. [ 102 ] During the Preliminary Inquiry, defence counsel cross-examined the Complainant at length on her alleged drug use and the Complainant responded to the questions asked of her in that respect. She was also asked of her propensity to sleep much of the time and she responded to those questions as well.

[ 103 ] The evidence before the Court on this voir dire is that transient individuals such as the Complainant live a lifestyle where they likely stay awake all night long and look for shelter during the daytime to sleep and keep warm. During cross-examination, the Complainant testified that she did not stay at the hotel shortly before the Preliminary Inquiry as instructed by police because she did not want to be “bored anymore and sleeping”. [ 104 ] It would be speculative to conclude that the Complainant’s credibility was negatively impacted by consumption of drugs or a mental health issue.

I am satisfied that Defence counsel had an opportunity to canvass these issues with the Complainant during the Preliminary Inquiry. Her responses on these issues are not such as to undermine the threshold reliability of her testimony. F. Failure by the Crown to disclose Audio and Audio/Video Recordings [ 105 ] Defence asked the Crown to ensure that the police recorded all interactions between them and the Complainant leading up to her testimony at the Preliminary Inquiry.

It appears that Counsel was concerned with both the Complainant’s behaviour and the possibility of influence by the police on the Complainant prior to her testimony. [ 106 ] The Complainant was located by the police on June 3, 2015. Indeed, it was the Complainant herself who approached the police on June 3, 2015, having recognized Cst. Crobar. Arrangements were made to have her stay at a hotel and in regular contact with the police until she was required to testify. On the evening of June 4, 2015, she left the hotel, but later returned on her own.

She was then moved by police from the hotel to her mother’s home in Millwoods. [ 107 ] While the interactions were either audio or audio/video recorded, the recordings were not provided to the defence prior to completion of counsel’s cross-examination of the Complainant, notwithstanding the request by the defence. [ 108 ] On June 5, 2015, at the conclusion of the Complainant’s testimony that day, she was remanded in custody until required to attend on June 8, 2015.

She testified during the afternoons of June 8 and June 9, 2015 and was remanded into custody at the conclusion of court proceedings on each of those afternoons pending her attendance the following day. [ 109 ] At the conclusion of the proceedings on June 9, 2015 and prior to the commencement of cross-examination of the Complainant, the Preliminary Inquiry Judge indicated that once the defence had concluded his cross-examination, the Complainant would be released from custody.

The Judge made it clear that he was “not going to keep [the Complainant incarcerated] for another weekend”, which would have been June 12 to 14, 2015. The Crown took the position that her release should not be postponed until after the disclosure of the recordings had been made.

Counsel conducted his cross-examination on June 10, 2015. [ 110 ] The defence now argues that the inability to cross-examine the Complainant regarding her behaviour in the couple of days leading up to the beginning of her Preliminary Inquiry testimony on June 5, 2015, as well as the verbal interactions between her and the police, has resulted in an unfair limit on his opportunity to fully cross-examine the Complainant and that it would, therefore, be unfair to the Accused to admit the Preliminary Inquiry evidence of the Complainant into evidence at trial. [ 111 ] The Complainant was being called upon to testify at the Preliminary Inquiry to events that occurred on June 16, 2014.

In my view, without more, there is a real question as to the relevance of recordings of the Complainant’s interactions with the police at or around the time of the Preliminary Inquiry, as well as her interactions with police during that time. It must be emphasized, and it was conceded by defence, that the bulk of the cross-examination that may have taken place as a result of the contents of the recordings between June 3 and 5, 2015, would not have addressed the events on the day of the alleged incident on June 16, 2014.

It would have related primarily to her condition in June 2015, the cause of that condition and according to the Defence, would have related generally to the Complainant’s credibility and reliability. [ 112 ] At one point during the recordings, the Complainant left the “soft room” at the police station where she was to view the KGB statements in order to make a telephone call. This occurred at 15:07 on June 4, 2015. The Complainant is heard in the audio recording saying to the person on the other end of the telephone line, “I don’t want to go to court, my head hurts. It is your fault.

You are the fault of all of this shit. You left me alone on the street”. [ 113 ] Defence has suggested that this statement might relate to the incident of June 16, 2014 and a comment made to somebody who dropped her off at the Accused’s apartment for the purpose of robbing the Accused, and counsel would have cross-examined on it. There is no evidence to support this suggestion. It is pure speculation. Nothing in the statement refers to a plan to rob the Accused or to enter his apartment for any purpose.

The statement would be equally referable to the Complainant having been left alone on the street at some time prior to the incident in 2014 for some completely unrelated reason, or to the Complainant having been picked up on the street by the police on June 3, 2015 for the purposes of testifying at the Preliminary Inquiry.

In my view, this statement has no probative value in terms of determining whether it would be unfair to allow her Preliminary Inquiry testimony to be introduced into evidence, and it is entirely speculative that cross-examination on the statement would have provided any information relevant to the incident. [ 114 ] Prior to cross-examining the Complainant at the Preliminary Inquiry, defence counsel discussed disclosure of the interaction videos and related documents. He stated that if disclosure was to be made after her testimony, he would conclude his cross-examination “subject to getting this disclosure”.

If he then wanted to cross-examine her further after receiving the disclosure, “she’ll have to be recalled” (803/5-9). [ 115 ] At the end of the Complainant’s cross-examination on June 10, 2015, defence counsel stated that in the interest of getting the Complainant’s testimony finished, he was not going to ask for all of the disclosure, but if the matter went to trial, he would be raising an issue about her Preliminary Inquiry testimony being admitted. [ 116 ] Defence counsel did receive the disclosure he sought before the end of the Preliminary Inquiry.

Defence counsel did not ask, nor did Crown offer, that the Complainant be recalled. It was open to defence counsel to apply to have the Complainant recalled. However, he did not ask that she be recalled. In the circumstances, it is reasonable to infer that defence counsel did not wish or consciously chose not to cross-examine her further.

[ 117 ] The Accused bears the onus under s. 715(1) of establishing that he did not have full opportunity to cross-examine the Complainant. “Full opportunity to cross-examine” under s. 715 is not necessarily undermined by the fact that defence counsel did not have every piece of evidence it could possibly use to cross-examine the witnesses at the time of the Preliminary Inquiry.

Nor does the counsel’s ignorance of potentially useful information, or discovery of potentially useful information after a witness has testified, deprive the accused of a full opportunity to cross-examine within the meaning of s. 715(1). [ 118 ] I conclude that the Accused has not established that counsel did not have full opportunity to cross-examine the Complainant. [ 119 ] Defence counsel did have the opportunity to cross-examine Det. Koshowski on the contents of the interaction recordings.

Defence counsel also called Rayanne Fleming during this voir dire and questioned her on her observations of, and interactions with, the Complainant in the days leading up to the Preliminary Inquiry and during the Complainant’s testimony. Defence counsel cross-examined the Complainant regarding her contact with the Accused while in custody.

Finally, he cross-examined the Complainant regarding events leading up to the Preliminary Inquiry, for example, her departure from the hotel, and her condition on the first day she appeared at the Preliminary Inquiry. [ 120 ] I conclude that the fact that defence may not have had an opportunity to cross-examine the Complainant on the contents of the recordings taken by Det. Koshowski does not equate to his not having had a full opportunity to cross-examine the Complainant as required by s. 715 . G. Conclusion Regarding s. 715 Requirements [ 121 ] The Complainant is deceased.

Her evidence at the Preliminary Inquiry was taken in the presence of the Accused who had full opportunity to cross-examine the Complainant. The conditions for admissibility of the Complainant’s testimony from the Preliminary Inquiry into the trial proper have been met. H.

Balancing under the Principled Approach to Hearsay [ 122 ] While I recognize that an analysis under the principled approach to hearsay can be used to consider the admissibility of the testimony notwithstanding that the requirements of s. 715 have not been met, it is my view that such an analysis also informs the question of whether a discretion should be exercised to exclude the testimony. The principled approach requires a functional analysis of those factors affecting probative value and prejudicial effect.

The extent of any unfairness to the Accused is a consideration in determining the prejudicial effect to the Accused of the admission of the testimony at trial. [ 123 ] In my view, the following factors must be weighed in determining whether the testimony meets the requirement of threshold reliability and whether admissibility would result in unfairness: i. Testimony under Oath [ 124 ] The Complainant testified under oath, and at different times during her testimony, she stated that she was telling the truth and confirmed her understanding that she was under a duty to tell the truth. ii.

Opportunity to Cross-examine [ 125 ] As I have already found, defence counsel had a full opportunity to cross-examine the Complainant at the Preliminary Inquiry, and had an opportunity to ask that she be recalled after he had received disclosure of the audio and audio/video recordings of police interactions with the Complainant. iii. Recording and Transcription of Testimony [ 126 ] The Complainant’s testimony during the Preliminary Inquiry was audio recorded and later transcribed. While the Court is not able to see her demeanour, it can hear the manner in which she testified.

Defence counsel noted a number of “indiscernible” references in the transcript. However, the audio recording is available and may be referred to at any time during this proceeding to assist in determining what was actually said. A good example of this occurred with respect to the oath administered to the Complainant on June 5, 2015. While it was extremely difficult to discern when the audio portion was first played in court, it became clearer once background noises were minimized. iv. Condition of Witness [ 127 ] After the Complainant’s incarceration, defence counsel questioned her about her sleepiness.

She denied being on any medication while at the Remand Centre. There was no suggestion that she was intoxicated during any of her testimony following her incarceration. v. Ability of Witness to Communicate [ 128 ] Once the Complainant was rested and fed during the period of her incarceration, she appears to have been lucid, coherent and responsive. She was clearly able to communicate. vi. Understanding of the Nature of the Proceedings [ 129 ] While there were times during her testimony when the Complainant appeared frustrated with her circumstances, there is no

evidence to suggest that she was unable to fully understand the nature of the proceedings and her role in them. Her frustration or any other evidence of the Complainant’s state of mind may be considered in determining the ultimate reliability of her testimony. vii. Contemporaneousness of Testimony to the Events in Question [ 130 ] While the Preliminary Inquiry took place approximately one year after the alleged offences, defence counsel had the Complainant’s KGB statement taken the afternoon following the incident, and was able to cross-examine her on inconsistencies.

In my view, the length of time between the event at issue and the witness’ testimony is more appropriately considered when assessing its ultimate reliability and the weight to be given to it. viii. Relationship between Witness and Accused [ 131 ] The evidence indicates that the Complainant and the Accused had not known each other before the incident. The Complainant did show animus toward the Accused during the Preliminary Inquiry. There is no evidence that her animus relates to anything other than whatever occurred on June 16, 2014. ix.

Motive or Absence of Motive to Lie [ 132 ] During cross-examination at the Preliminary Inquiry, defence counsel explored with the Complainant the main defence trial theory, being that she broke into the Accused’s residence to steal from him. x. Consistency within the Testimony [ 133 ] Inconsistencies arising during the Complainant’s testimony were addressed by defence counsel in cross-examination, and these inconsistencies may be considered in determining ultimate reliability. For the purposes of determining admissibility at this stage, the Court is not required to determine ultimate reliability.

While she was challenged on inconsistencies, her basic account of the event was internally consistent. Defence counsel also addressed ambiguities in the Complainant’s evidence through cross-examination. xi. Pressure on the Witness [ 134 ] There was no evidence the Complainant felt beholden to the Crown or pressured due to her incarceration and promise of release. She was told that she had to complete her testimony before being released, but there is nothing to support an inference that she tailored her evidence to favour one side or the other. xii.

Corroboration [ 135 ] Some evidence corroborating the Complainant’s testimony was led by the Crown, including police witnesses, medical reports and photographs of the crime scene. I. Conclusion on Principled Approach to Hearsay [ 136 ] The evidence sought to be introduced is prejudicial to the Accused in the sense that it implicates him in the offences charged. But this is not the type of prejudice which is considered when weighing the prejudicial effect with the probative value.

On the evidence before the Court, the prejudicial effect does not outweigh the probative value of the evidence so as to render it inadmissible in the trial. There was no unfairness to the Accused by the manner in which the evidence was obtained, and its admission would not affect the fairness of his trial. VI Conclusion [ 137 ] The audio recording of the Preliminary Inquiry testimony of the Complainant is admissible in the trial proper. The transcript of the audio recording is also admissible, but solely as an aid for reviewing the testimony. Heard on the 17 th day of November, 2016.

Dated at the City of Edmonton, Alberta this 22 nd day of November, 2016.

Eric F. Macklin J.C.Q.B.A. Appearances: Thomas Engel for the Accused Patricia Innes for Her Majesty the Queen in Right of Alberta