R v Blanchard, 2016 ABQB 679

Court of Queen’s Bench of Alberta Citation: R v Blanchard, 2016 ABQB 679 Date: 20161202 Docket: 150463008Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Lance Blanchard Accused 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 By Court Order, this decision and the evidence given in the preliminary inquiry must not be published, broadcast, or transmitted in any way.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 Accused’s Exculpatory Statements to the Police

of the Honourable Mr. Justice Eric F.

Macklin _______________________________________________________ I Introduction [1] This voir dire concerns admissibility of exculpatory statements the Accused made to the police when he was removed fromthe scene of the incident, in the back of the police vehicle after arrest, at the police station while being strip searched, and during hisvideotaped interview by police. [2] Defence counsel submits that the statements are admissible as spontaneous reactions of the Accused upon being charged.The Defence also submits that they are relevant to the defence that police were negligent in their investigation of the matter and biasedagainst the Accused. [3] I previously ruled (2016 ABQB 615) that the Accused’s application was premature until such time as he took the stand andexposed himself to cross-examination, based on R v Edgar, 2010 ONCA 529, [2010] OJ No 3152, leave denied [2010] SCCA No 466, Rv Liard, 2015 ONCA 414, [2015] OJ No 3000 at paras 44 to 50, leave denied [2015] SCCA No 402, and R v Keeler (1977) 1977ALTASCAD 126 , 36 CCC (2d) 8 (Alta CA). [4] The Accused has now taken the stand.

II Analysis A Spontaneous Reactions [5] The term “spontaneous reactions” includes not only physical reaction, but also spontaneous declarations.

As discussed in theCourt’s previous decision, the exceptions to the exclusionary rule outlined in Edgar and Liard where the accused seeks to adduce hisown statement include an accused's spontaneous out-of-court statement made on arrest or when first confronted with an accusation of acrime. [6] In Edgar at paras 41-73, the Court explained the basis for admissibility under the spontaneous reaction exception.Statements showing an accused's spontaneous reaction to being accused of a crime are relevant to show consistency with an accused'strial testimony.

For example, an accused may do things from which innocence might be inferred including volunteering to take apolygraph test and providing samples for forensic testing. Although the statements are not admissible for the truth of their contents, theyare relevant to an accused's credibility and as a piece of circumstantial evidence bearing on an accused's guilt or innocence.

Thisexception to admissibility recognizes that an accused's immediate reaction to an accusation of a crime may be more reliable and probativethan the accused's testimony given years later in a courtroom. [7] Such statements must have been made when the accused was arrested, was first accused of committing a crime, or was firstpresented with incriminating facts. They must be spontaneous. They are admissible as evidence at trial because of their relevance inshowing the reaction of the accused when first arrested, charged or confronted with incriminating facts. They are not received asevidence of the facts stated.

That is, they are not evidence of the truth of what was said (subject to being admissible under the principledapproach to hearsay evidence) but are evidence of the reaction of the accused, which is relevant to the credibility of the accused and ascircumstantial evidence that may have a bearing on innocence. [8] It would run counter to the presumption of innocence to assume that all statements made by an accused person upon arrestare fatally tainted with self-interest and motive to lie.

The risk of fabrication can be dealt with more effectively through cross-examination and by looking to the degree of spontaneity of the statement. Statements lacking in spontaneity may be excluded, or, in thecase of doubt, admitted subject to weight. [9] In Edgar, the appellant wanted the statements to be admitted mainly to show his confused and agitated state of mind insupport of his defence of automatism and lack of intent. The Court held that two statements were spontaneous and made within minutesof the appellant's arrest for murder.

The appellant was in a highly agitated state and he had little time to think or to fabricate a story. Thethird statement was made four hours after the arrest, when the appellant was in the hospital recovering from the injuries he had sustainedin the altercation. It was really a continuation of the first two statements.

The Court held that the three out-of-court statements were madeby the appellant upon his arrest and upon being first confronted with the allegation of murder. [10] In Liard, the Court held that the accused’s statement was admissible despite the fact that it occurred 13 hours after arrest, as itwas given when the appellant was first confronted with an accusation of murder, and it was spontaneous.

The Court held that the trialjudge had not erred in admitting the first seven hours of the statement, as the first six hours gave context for her reaction when she wasmade aware of the allegation against her. [11] The Crown submitted that allowing into evidence the spontaneous reaction of the accused to being charged, or to specificallegations, is tantamount to admitting demeanour evidence which is generally prohibited when considering prior consistent statementsby witnesses or complainants. This ignores, however, the different burdens on the Crown and the accused.

The accused is presumedinnocent, and the exception is justified to ensure that such potentially probative evidence of the accused’s innocence may be considered

by the Court. [ 12 ] I find there is no policy reason to exclude such statements. [ 13 ] Having reviewed all of the statements, I find that the statement in the hallway and portions of the interview are admissible under the spontaneous reaction exception to the exclusionary rule. B Negligent Investigation [ 14 ] Defence counsel is attempting to lay the foundation for a defence based on negligent investigation.

In my previous ruling, I held that this purpose may be considered a fourth exception to the exclusionary rule regarding an accused’s prior statement. [ 15 ] Defence submits that the statements in question may have some 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. [ 16 ] Having reviewed all of the statements, I am satisfied that the statements in the hallway and the police interview are potentially relevant to the Defence’s questioning of the integrity and effectiveness of the police investigation and, if so, they are relevant to the question of the Accused’s innocence.

They are admissible under the negligent investigation exception to the exclusionary rule. [ 17 ] The statements in the back of the car and at the time of the strip search are the same as the earlier one in the hallway. Therefore, I find them to be inadmissible as they have no probative value, being mere repetitions of the earlier statement. III Conclusion [ 18 ] The statement of the Accused in the hallway and his interview with the police are both admissible as having some potentially probative value in relation to the defence of negligent investigation.

The statement in the hallway and portions of the interview are also of potentially probative value as spontaneous reactions by the Accused when confronted with the charges and incriminating facts. [ 19 ] In cases where the only basis for admission is the spontaneous reaction exception, and the entire interview is not otherwise admissible, it will be necessary for the Court to identify those portions necessary to show the reaction of the accused, including sufficient context to properly evaluate the reaction.

While a formal editing and a formal redaction may not be necessary in a trial by judge alone, it would be advisable in a judge and jury trial to only admit into evidence an edited version of the interview and a redacted transcript for reference. [ 20 ] As a result of my ruling on admissibility, Crown is entitled to cross-examine the Accused on the statement made by the Accused in the hallway and his entire interview with the police. [ 21 ] Both counsel may address in final argument the use to which the statements may be put, and the weight to be attributed to them. Heard on the 30 th day of November, 2016.

Dated at the City of Edmonton, Alberta this 2 nd day of December, 2016. Eric F. Macklin J.C.Q.B.A. Appearances: Pat Innes, QC for the Crown Thomas Engel for the Accused