R v Blanchard, 2016 ABQB 666

Court of Queen’s Bench of Alberta Citation: R v Blanchard, 2016 ABQB 666 Date: 20161124 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 By Court Order, this decision and the evidence given in the preliminary inquiry must not be published, broadcast, or transmitted in any way.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 Note : The restriction expired on December 16, 2016. ______________________________________________________ Reasons for Judgment on the Admissibility of KGB Statements of the Honourable Mr. Justice Eric F. Macklin _______________________________________________________

I Introduction [ 1 ] These are the reasons for my oral decision of November 24, 2016 relating to the admissibility of KGB statements by the Complainant. II Background [ 2 ] The Accused faces nine counts including: kidnapping, unlawful confinement, aggravated sexual assault, uttering threats to cause death or bodily harm, attempted murder, and possession of a prohibited weapon.

The offences are alleged to have occurred on June 16, 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 Complainant’s Preliminary Inquiry testimony was admitted into the trial under s. 715 of the Criminal Code , RSC 1985, c C-46. [ 6 ] Crown now applies to admit the Complainant’s two KGB statements for the purpose of showing the Complainant’s demeanour at the time they were taken. [ 7 ] Defence counsel wishes to adduce the KGB statements into evidence to show inconsistencies between the Complainant’s statements and her later Preliminary Inquiry testimony.

In that event, Crown wishes to refer to the KGB statements to show consistencies.

III Argument A Accused’s Position [ 8 ] Defence counsel submits that to the extent the KGB is a prior consistent statement, necessity is not established so as to permit Crown to introduce it as part of its case, as the Complainant’s Preliminary Inquiry testimony is before the Court. [ 9 ] Defence also submits that while defence can raise inconsistencies in the KGB statement, the Crown cannot rely on consistencies in the KGB statement to respond to inconsistencies raised by the defence, as Crown could have done this at the Preliminary Inquiry.

Defence submits that the Crown cannot rely on consistencies unrelated to inconsistencies raised by defence to rebut the weight of the inconsistencies. [ 10 ] Defence counsel expressed the possibility that he will wish to introduce the entire KGB statement to establish that the Complainant failed to include in her KGB statement certain material facts which she alleged in her Preliminary Inquiry evidence. Defence also wants to show what he alleges is behaviour on the part of the Complainant which supports his position that she was under the influence of drugs at the time of the statement.

B Crown’s Position [ 11 ] Crown concedes that any statement made by the Complainant that is not within the Preliminary Inquiry testimony is not admissible for the truth of its contents. Crown argued that the KGB statements are admissible for the purposes of assessing the Complainant’s demeanour at the time the statements were made.

Crown concedes that it is not entitled to adduce prior consistent statements, but submits that the statement can be admitted for this purpose despite admission of the Complainant’s Preliminary Inquiry testimony, relying on R v Laporte , 2016 MBCA 36 , R v Assoun , 2006 NSCA 47 , and R v BA , 2008 ONCA 556 and R v Mendez- Romero , [2008] OJ No 512 (Sup Ct) .

IV Analysis A Necessity [ 12 ] The Court in R v Rhayel , 2015 ONCA 377 held that necessity was not established in relation to the deceased complainant’s prior videotaped statement where the preliminary transcript has gone in and the KGB statement provided essentially the same evidence. [ 13 ] In my view, the same reasoning applies here, and this is a complete answer to any suggestion that the KGB statement is admissible as part of the Crown’s case in chief.

B Probative Value of a Prior Consistent Statement to Show Demeanour [ 14 ] Demeanour evidence has been said to be of limited value in assessing or determining a witness’ credibility: R v JAA , 2011 SCC 1737 , R v Santhosh , 2016 ONCA 731 , R v St. Roch , 2016 ONCA 530 . A trier of fact should not place undue weight on the demeanour of a complainant or any witness in assessing credibility.

[ 15 ] In R v Murphy , 2014 YKCA 7 , the Court of Appeal held that the evidence of the witnesses’ initial dealings with the police was not only irrelevant, in the sense that there was no fact in issue, but it violated the rule against oath-helping. The evidence had no probative value and could not be used to bolster the Crown's case. What the witnesses said to the police, their demeanour, emotional condition and cooperativeness, should have had nothing to do with their testimony at trial as it did not make the evidence more reliable.

See also R v PT , 2014 NLCA 6 . [ 16 ] In Rhayel , the Court of Appeal held that the admission of a prior videotaped statement of the deceased Complainant violated the principled approach to the admission of hearsay and the rule against admitting a prior consistent statement. The Court noted that prior consistent statements are generally inadmissible because they lack probative value. The trial judge received the videotaped statement into evidence as a package, including the words spoken for their truth and her demeanour.

Since the videotaped statement was inadmissible for its truth, the complainant’s demeanour as she gave the statement was also inadmissible. The Court held at para 82 that there was no value in the way the complainant spoke inadmissible words at a moment in time removed from when she gave her evidence at the preliminary inquiry.

The Court noted that any value which the demeanour evidence might have had was diminished as it was not subjected to contemporaneous cross-examination. [ 17 ] In the re-trial in Murphy , 2015 YKSC 30 , the Court similarly rejected Crown’s attempt to adduce prior consistent statements to show only demeanour, not for the truth of their contents. [ 18 ] In this case, the Complainant’s demeanour itself was not the subject of contemporaneous cross-examination at the time of the KGB statement, nor would the KGB statement show what her demeanour would have been had she been challenged on her version of events at that time. [ 19 ] Evidence as to the demeanour of a complainant or a witness is of limited probative value.

The value of demeanour evidence can only be further diminished when considered in the context of statements that are inadmissible for their truth. In my view, the demeanour of a complainant or a witness in relation to an inadmissible prior consistent statement has no probative value. [ 20 ] In addition, the demeanour evidence sought to be introduced relates to a statement known by the trier of fact to be inadmissible as a prior consistent statement.

To the extent that the trier of fact may find that the demeanour enhances the credibility of the witness, it could only do so in relation to the subsequent testimony and, as such, it is oath-helping. [ 21 ] Accordingly, evidence as to the demeanour of the Complainant while giving a prior consistent statement cannot be introduced as part of the Crown’s case. [ 22 ] Defence asserted that the behaviour of the Complainant while giving the KGB statements is relevant and admissible as part of the factual foundation for an expert opinion.

Assuming that the expert evidence is otherwise admissible, and the behaviour of the Complainant is relevant to the opinion of the expert, then the behaviour would be admissible. However, as with inconsistencies (discussed below), the Crown may apply to adduce other portions of the KGB statements to counter the factual foundation relied upon by the expert. C Inconsistencies in a Prior Statement [ 23 ] A prior statement may be introduced by the defence for the purpose of showing inconsistencies between the prior statement and subsequent testimony.

This does not mean that the statement can be relied on by the Crown for the truth of its contents: R v Warren , 2016 ONCA 104 . [ 24 ] In R v LO , 2015 ONCA 394 , the defence introduced prior statements for the purpose of showing inconsistencies rendering the complainant’s trial testimony unreliable. The Crown responded to that argument with the claim that the inconsistencies were insignificant when placed in the context of the entirety of the statements, including a s. 715.1 videotaped statement. The Crown was not relying on the out-of-court statements for the truth of the contents.

The Court held that the jury had to consider the entirety of the evidence relating to the child’s various statements, including the consistencies in those statements, in deciding the impact of any inconsistencies on her credibility and reliability.

The Court noted at para 40 that while the defence was entitled to vigorously attack the complainant’s credibility and reliability using her prior statements, the Crown was equally entitled to rebut those attacks with the contention that the statements were not inconsistent on material matters. [ 25 ] The Court in R v Perkins , 2015 ONCA 521 , a case involving an adult complainant, cited LO with approval on this point and held that points of consistency on essential aspects of the allegations are relevant to the credibility and reliability assessment of a complainant's evidence where the defence raises inconsistencies to attack the complainant’s credibility and reliability. [ 26 ] In my view, the defence is entitled to adduce evidence of inconsistencies between the Complainant’s KGB statements and her Preliminary Inquiry testimony in order to attack her credibility and reliability.

In that event, however, the Crown is entitled to argue that those inconsistencies are insignificant or immaterial when considered in the context of consistencies between the two statements on material points. [ 27 ] At the time that the defence seeks to introduce inconsistencies from the prior consistent statement, the Court must determine the extent to which the Crown may rely on consistencies between the statements to rebut those attacks by defence. Regardless of the extent to which consistencies are admitted, they cannot be relied upon for the truth of the contents as that would amount to oath-helping.

VI Conclusion [ 28 ] The Crown’s application to admit the evidence of the Complainant’s demeanour at the time of her KGB statements is denied.

[ 29 ] Defence counsel will be entitled, as part of its case, to introduce into evidence those portions of the Complainant’s KGB statements which are alleged to be inconsistent with her testimony at the Preliminary Inquiry. If he chooses to do so, the Crown will be entitled to apply to introduce points of consistency in order to rebut the attack on the Complainant’s credibility. [ 30 ] Defence will also be entitled to apply to adduce evidence of the Complainant’s behaviour during her KGB statements as part of the foundation for anticipated expert evidence as to her possible drug use or withdrawal from drug use.

If he chooses to do so, the Crown will be entitled to apply to introduce evidence in order to rebut the factual foundation of the expert opinion. Heard on the 23 rd day of November, 2016. Dated at the City of Edmonton, Alberta this 24 th day of November, 2016. Eric F. Macklin J.C.Q.B.A. Appearances: Thomas Engel for the Accused Patricia Innes, QC for Her Majesty the Queen in Right of Alberta