R. v. Warkentin Date:, 2017 BCPC 381

Citation: R. v. Warkentin Date: 20170523 2017 BCPC 381 File No: 65403-2-KC Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. THEO PETER WARKENTIN REASONS ON VOIR DIRE OF THE HONOURABLE JUDGE P.D. GULBRANSEN Counsel for the Crown: H.B. Waldock Counsel for the Defendant: P.R. Derksen Place of Hearing: Chilliwack , B.C. Date of Hearing: April 27- 28, 2017 Date of Judgment: May 23, 2017 Introduction

Introduction [1] On August 22, 2016, D.M. (“Ms. M.”) told the police that the defendant had assaulted her while they were in her residenceearlier that day. When she testified at Mr. Warkentin’s trial on a charge of assaulting her, she recanted that statement, saying that she hadactually assaulted him and that he had only defended himself.

The Crown now applies to have the statement which she gave to thepolice admitted as evidence at the trial under the “principled exception” to the general rule that hearsay statements are not admissible. [2] The Crown’s witnesses testified on a voir dire to determine the admissibility of the statement. There is no doubt that thetestimony of the complainant on the voir dire differed substantially from the statement which she gave to the police.

The issue iswhether the Crown has established: (1) that it is necessary to admit the statement in evidence to permit the court to properly perform itsfunction in seeking the truth; and (2) whether the statement is sufficiently reliable to permit the court to weigh or assess it as if it werethe equivalent of actual testimony from the witness. Applicable Legal Principles [3] A statement is hearsay if it was made out of court and is tendered by a party for the truth of its contents.

The general rule isthat such statements are not admissible as evidence, although the common law has always recognized exceptions to that rule. Theseinclude, for example, confessions by an accused; other admissions against interest; statements made by a co-conspirator in furtherance ofthe conspiracy; spontaneous utterances; and dying declarations. [4] In 1990, in R. v.

Khan, [1990] 3 S.C.R. 531, the Supreme Court of Canada ruled that the law should move away from requiringspecific categories of exceptions to the rule against hearsay and instead should approach the issue of the admissibility of hearsaystatements by using a principled approach. In a series of decisions over the next 16 years, the Supreme Court revised and refined therules which trial courts must follow in deciding whether to admit hearsay evidence at trial. In R. v.

Khelawon, 2006 SCC 57, the courtthoroughly reviewed those cases and set out a clear set of rules or guidelines which govern trial courts in deciding whether to admithearsay evidence. [5] The fundamental rule is that all hearsay which does not qualify as one of the specific exceptions to this rule is presumed to beinadmissible. The party who wishes to use it at trial, must prove, on a balance of probabilities, that the proposed evidence is bothnecessary and reliable. That is because there are dangers inherent in the use of hearsay statements which could result in unjust verdicts.

Charron J., writing for the court in Khelawon summarized the potential problems in paragraph 2 of the judgment: As a general principle, all relevant evidence is admissible. While no single rationale underlies its historical development, the criticalreason for the presumptive exclusion of hearsay statements is the general inability to test their credibility. Without the maker of thestatement in court, it may be impossible to inquire into that person’s perception, memory, narration and sincerity. The statement itselfmay not be accurately recorded.

Mistakes, exaggerations or deliberate falsehoods may go undetected and lead to unjust verdicts. Hence,the rule against hearsay is intended to enhance the accuracy of the court’s findings of fact, not impede its truth seeking function. The court noted that the essential weakness in almost all hearsay statements is that there has not been an opportunity for cross-examination of the maker of the statement at the time the statement was made. [6] There are, however, as the term “principled exception” implies, circumstances in which a hearsay statement could be reliableevidence at a trial.

When the circumstances which govern in a particular case establish that the dangers referred to above are eliminatedor even compensated for, a hearsay statement may be admitted into evidence for proof of the truth of its contents. [7] The purpose of the voir dire is not for the court to determine the ultimate reliability of the hearsay statement, but rather todetermine what some cases have referred to as “threshold reliability.” That is, is the statement sufficiently reliable to be weighed with allof the other evidence?

Prior Inconsistent Statements [8] The case at bar concerns the proposed use of a prior inconsistent statement made by a party’s own witness. Section 9(2) of theCanada Evidence Act allows a court to permit a party to cross-examine its own witness, where it is established that the witness has madea statement which is inconsistent with the testimony at trial. However, until the “principled exception” to the hearsay rule wasdeveloped, the prior statement could not be used for the truth of its contents (except in the very rare circumstance in which the witnessadopted the prior statement as being true).

The court could only use that prior statement to assess the testimony of the witness. Wherethere was a significant conflict between the testimony and the prior statement, a court would give little weight to the testimony of thewitness. [9] The Supreme Court has decided two cases where the admissibility of prior inconsistent statements was discussed. The casesillustrate that the “principled approach” may result in the admission of hearsay statements in significantly varying circumstances. In R.v. B. (K.G.), (SCC), [1993] 1 S.C.R. 740, Crown witnesses had recanted statements they made to the police.

Thestatements were video recorded and made under oath. These were the hallmark features which, combined with the availability of thewitnesses for cross-examination at the trial, convinced the Supreme Court that these statements met the test for “threshold reliability”. [10] In R. v. U. (F.J.), (SCC), [1995] 3 S.C.R. 764, a woman had told the police in some detail about how her fatherhad sexually assaulted her over several years. At trial, she recanted that statement.

However, the accused (her father) had confessed tothe police and given details of the assaults, which were extremely similar to the details provided by the witness in her statement to thepolice. Although the witness’ statement was not video or audio recorded and was not under oath, the court decided that it also met thetest for threshold reliability. The key factor here was that there was such a striking similarity between the witness’ statement to thepolice and the father’s confession. That striking similarity made it likely that the witness’ statement was true.

As well, the witness wasavailable for cross-examination at trial. Necessity and Reliability

[ 11 ] The judgment in Khelawon endorses the proposition that the court may also look to extrinsic circumstantial evidence which tends to confirm or corroborate the details in the statement tendered at trial. That is, the inquiry is not restricted to looking only at the circumstances surrounding the making of the statement. [ 12 ] The criteria of reliability and necessity sometimes intertwine. For example, in R. v. U. (F.J.) , the very high reliability of the witness’ statement to the police, “… rendered its substantive admission necessary.” [ R. v. Khelawon at para. 86] .

In a case where a witness recants a prior statement, it is the unavailability of that evidence which satisfies the criterion of necessity, not the unavailability of the witness. That is, in such circumstances, it is the reliability of the prior inconsistent statement which is the crucial factor for the court to review. Circumstances [ 13 ] Ms. M. lives in what has been described as a “coach house” on the laneway of a property on [omitted for publication] Avenue in Chilliwack. This incident occurred in the morning of August 22, 2016. D.V. was visiting a friend who lived in the house next door to this property.

She and her friend were outside in the backyard about 9:00 a.m. She heard some shouting from inside the house. It was the voice of a woman, but she also said that she may have heard a man’s voice. The woman seemed to be upset. The witness could not make out any words that were said. [ 14 ] After about 10 minutes, a man and woman emerged from the door of the coach house. This was Ms. M. and Mr. Warkentin. The witness said that the woman was distraught and seemed to be protesting something that the man was doing.

She recalls the woman saying such things as: “I don’t want to.”; “Don’t.”; “Stop.” She also heard the woman say, “Let me go.” There appeared to be some sort of struggle between the two and then they went back inside the coach house. After a few minutes, the woman emerged again from the door of the coach house, and ran to the main house on the property and banged on the window. She appeared to be crying. Someone let her into the other house. The man also came out of the coach house and said to Ms.

M. as she went towards the house, “I was not banging your daughter.” [ 15 ] At this point, the witness decided to call the police. [ 16 ] Constable Schmitt of the Chilliwack RCMP arrived about 10 minutes later, along with other officers. The officer went to the main house and saw Ms. M. there. She was dressed in a bathrobe. The officer described her as being distraught. Several officers then attended to arresting Mr. Warkentin. They described him as being intoxicated. Ambulance attendants also came to the main house and examined Ms. M., who had some obvious injuries to her head, face, and neck.

They decided to take her to the hospital. [ 17 ] RCMP officer, Cst. Brittany George, also met with Ms. M. at the scene. Cst. George described her as crying hysterically. The officer drove to the hospital to interview Ms. M. She arrived at the hospital at about 9:40 a.m. The officer took several photos of Ms. M. to depict the injuries that the officer had noticed. These photographs show bruising and swelling under her left eye and on her cheek. They also show red marks to the left side of her forehead and long rectangular bruising to the right side of her neck. [ 18 ] Cst. George said that when she met Ms.

M. at the hospital, she first appeared to be upset, but then calmed down. At times during the interview, Ms. M. had what Cst. George called a “glazed over” look on her face. Cst. George also said that she could smell the odour of liquor coming from Ms. M., but that she did not believe that Ms. M. was intoxicated. [ 19 ] Cst. George began the interview at about 9:50 a.m. The interview was recorded. Ms. M. said that she and the defendant had come home that evening (the 21 st ) from visiting friends at Hatzic Lake. She said that the defendant continued drinking at home.

He had fallen asleep, but she said that he kept on waking up seeking more alcohol. She said that she decided to look at the photos on the defendant’s cell phone. She had never done this before. She said that she found videos of him with other women, including her own adult daughter. The nature of the video that she saw made her believe that the defendant had an intimate relationship with her daughter. [ 20 ] At that point, she said she just wanted to get the defendant out of the house. She did not wake him up, but started putting all of his stuff into his car.

She described what happened next as follows: “And then at some point he just literally tried to kill me.” She said that he strangled her hard enough that she almost passed out. She said that she tried to get away a couple of times. She described further acts of violence as follows: “… grabbing my hair, pulling. Slamming my face, um, holding me like putting me in a chokehold and like strangling me, like his whole weight on my throat.” [ 21 ] Ms. M. said that Mr. Warkentin had never been violent to her in the past. She had known him 15 years, although they had only got together recently.

She was, however, upset about the defendant having what she thought was a sexual relationship with her daughter. She said that her daughter’s young son, Ms. M.’s grandson, died two years ago. She said that she believes her daughter had something to do with the child’s death. Referring to her daughter and the defendant, she said: “…both of them are animals as far as I am concerned, just animals.” [ 22 ] Although she said she was not angry about seeing the pictures on the defendant’s phone, Ms. M. said she even messaged a couple of the women who appeared in those pictures. She had never done that before.

She said that she had been supporting the defendant for eight months, because he had experienced serious financial strain. She said that she just wanted closure and wanted him out. She did, however, insist that she “never provoked it”; (that is, the violence.) [ 23 ] She said that she also gave the defendant a couple of sleeping pills at his request. She said that it took a long time for him to go to sleep after he took them. [ 24 ] Ms.

M. summarized the incident again, and said that “he was just wanting to kill me, he just was wanting to kill me” and that he was “… bashing my head with his fist and his elbows smashing me and choking me….” She also said that she got loose a couple of times, and the last time she started screaming for help, but he caught her. [ 25 ] The recording is clear with only a few inaudible parts, none of which are significant.

[ 26 ] The emergency room doctor who examined Ms. M. also testified. He confirmed that the photographs taken by Cst. George depict injuries consistent with those that he saw on Ms. M. There was no bleeding and there were no injuries on any other part of her body. He noted contusions to the left side of the scalp of Ms. M. He also saw red abrasions on her forehead and bruising marks on the orbit of her left eye.

He noted a number of abrasions on the front of her neck extending left to right, about two thirds of the way around her neck. [ 27 ] He believed that the bruising and other marks that he noted were relatively fresh. He was skeptical of the suggestion put to him that the bruises to the neck could have occurred a few days earlier. He was also skeptical of the suggestion that the marks on the orbit of the eye and head could have occurred by Ms. M.’s face striking a flat surface. [ 28 ] He agreed that the injuries he noted were consistent with Ms. M. being struck in the face and head by someone’s fist and elbows.

He also said that the bruising to the neck was consistent with strangulation or progressive asphyxiation. [ 29 ] In her testimony on the voir dire , Ms. M. provided a fundamentally different version of what happened between her and the accused. She said they had been visiting their friends at Hatzic Lake, where they had consumed some alcohol, but only moderate amounts. She did not portray Mr. Warkentin as being intoxicated. When they got home, she said that she eventually gave him two sleeping pills because he was having trouble getting to sleep. [ 30 ] While he was asleep, Ms.

M. said that she searched through his pictures on his cell phone, finding pictures of him with her daughter, as well as with other women. She was upset by the thought of her daughter having some sort of intimate relationship with the defendant. In her testimony, she said that she became extremely angry at Mr. Warkentin. She said that she jumped on the bed where he was sleeping, and began punching him wherever she could, and even kicked him.

He woke up, grabbed her and threw her from the bed. (He is much bigger than she is.) She said that she fell on a table near the bed, striking her face and then struck the floor. She denied that Mr. Warkentin struck her at all. She said that she then ran out of the house to the main house on the property. She did not recall what she was wearing, but did not think it was a bathrobe. [ 31 ] She explained that the marks on her neck – the bruises which covered half her throat – did not occur because she was strangled by the defendant.

Rather, she said they were caused when she was involved in a hiking mishap, where she ended up being tangled in some bushes, wherein the straps on the backpack ended up on her neck, leaving her almost hanging from the bushes. [ 32 ] Ms. M. said she had no memory at all of speaking to Cst. George. She explained that she had also taken a sleeping pill later that morning, but that it had not taken effect by the time the police arrived at the scene. She said that it was not uncommon for her to end up saying things while under the influence of this drug, which she could not later remember.

She said that her doctor subsequently stopped prescribing this particular medication to her. [ 33 ] Throughout her examination-in-chief and cross-examination, Ms. M. denied having any memory of what she said to Cst. George. Neither the printed transcript nor the actual audio recording of the statement refreshed her memory. Analysis [ 34 ] There is no question that the statement tendered by the Crown in this case is hearsay. That is, it is a statement made out of court by the declarant which the Crown tenders as proof of the truth of its contents.

Thus, it is presumed to be inadmissible unless the Crown can establish, on a balance of probabilities, that it is sufficiently reliable to overcome the dangers inherent in hearsay evidence and it is necessary to assist the court in its truth seeking function. [ 35 ] Like most hearsay statements, there was no opportunity for contemporaneous cross-examination of the declarant.

The statement was not taken under oath, nor was there any warning or caution given by the police officer to the witness about the importance of telling the truth. [ 36 ] There are however, significant factors which tend to establish the reliability of the hearsay statement, such that it can be properly tested and weighed by the court. [ 37 ] The circumstances in which the statement was made enhance its reliability. First of all, the statement was taken within a few hours of the alleged incident. That is, the matter would still be fresh in the declarant’s memory.

Second, it was not taken in circumstances where the witness had not had time to recover her composure and to get some medical attention. [ 38 ] The officer conducted the interview properly. That is, she did not ask any leading questions, thereby suggesting to the declarant what to say. She began the interview by asking an open-ended question. Ms. M. replied, without interruption, with a fairly complete

summary of what she said had happened between her and the defendant. Cst. George then asked a series of very specific questions aimed at clarifying what Ms. M. had told the officer. There was no hint of any pressure on the witness to convince her to talk to the officer. Throughout the interview, Ms. M. was responsive to the questions. [ 39 ] Although the statement was not video recorded, there was an accurate audio recording of what was said.

It is complete and allows the listener to assess the witness’ emotional state, responsiveness, sobriety and mood. [ 40 ] There is also independent circumstantial evidence which tends to support the accuracy of the statement. One witness saw the declarant run from her residence to the main house on the property, apparently in distress. Two officers who saw Ms. M. at the scene noted that she was very upset. Pictures taken by Cst. George show that Ms.

M. had suffered injuries to her forehead, to her left eye and cheek, and to her throat, which were consistent with her statement about what the defendant had done to her. The examining physician agreed that those injuries were consistent with Ms. M. being struck by someone’s fists or elbows, and with being choked. As well, the examining physician confirmed that in his opinion, these injuries were relatively fresh. This is consistent with Ms. M.’s statement that she had been assaulted some hours before. Conclusion

[ 41 ] Is it necessary to admit the statement? The relative reliability of the statement contributes significantly to the question of necessity. That is, it is obvious that the admission of the statement in evidence is necessary for the prosecution case, because otherwise, there would be very little evidence to support the charge. Ms. M., in fact, has denied under oath that Mr. Warkentin assaulted her.

But, the question is not so much whether the prosecution needs the evidence, but whether it is necessary for the court in deciding the case, to admit the statement. [ 42 ] In this case, the hearsay statement was made in circumstances that enhance its reliability. The interview was conducted by the police officer in an effective manner, without leading questions or any form of coercion or pressure. There is an accurate audio recording, which allows the court to assess among other things, the manner in which the declarant made her statement.

The declarant was available for cross-examination and, in fact, did testify and was cross-examined. As well, there was significant reliable corroborating or confirmatory evidence which supported the declarant’s assertion that she had been assaulted earlier that day. [ 43 ] That is, the hearsay statement is apparently reliable and potentially very probative.

It is therefore necessary for that statement to be introduced into evidence because that testimony would otherwise not get before the court. [ 44 ] I find, therefore, that the Crown has established, on a balance of probabilities, that the hearsay statement obtained from Ms. M. is both reliable and necessary. I find that is admissible in these proceedings. [ 45 ] It is important to emphasize, however, that I am merely deciding “threshold” reliability. I will assess the statement in conjunction with all of the other evidence introduced in this case.

As with any other evidence tendered at trial, I can accept all of it, some of it, or none of it. [ 46 ] For example, counsel for the defendant points out that he really could not cross-examine Ms. M. on her prior statement, because she denies having any memory of making it. However, her testimony was certainly favourable to the defendant. No doubt, the defence argument will be that the witness’ testimony under oath is more reliable and credible than the prior statement.

The witness’ claim that she has no memory of the statement is certainly something I will have to take into account in deciding what weight to give to it. [ 47 ] I assume that the evidence given on the voir dire will now form evidence on the trial. That is the order I will make, unless counsel have some specific submissions on that point. The Honourable Judge P.D. Gulbransen Provincial Court of British Columbia