R. v. Warkentin Date:, 2017 BCPC 387

Citation: R. v. Warkentin Date: 20171023 2017 BCPC 387 File No: 65403-2-KC Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. THEO PETER WARKENTIN RULING ON VOIR DIRE #2 OF THE HONOURABLE JUDGE P.D. GULBRANSEN Counsel for the Crown: H. Waldock Counsel for the Defendant: P. Derksen Place of Hearing: Chilliwack , B.C. Date of Hearing: August 2, 2017 Date of Judgment: October 23, 2017

[ 1 ] I have two decisions I have got to briefly deliver. One is dealing with the recent Supreme Court of Canada decision in Bradshaw and the other is dealing with the Crown's application to tender similar fact evidence. Both reasons are fairly brief but I am going to have to read them in. First of all I will deal with the effect, if any, of the Bradshaw decision.

I will read from my decision now. [ 2 ] After I made my decision in this case that the audio recording of the complainant's statement to the police was admissible as an exception to the hearsay rule, the Supreme Court of Canada filed the decision in R. v. Bradshaw . That decision dealt with how courts should approach the evaluation of evidence tendered to corroborate the contents of a hearsay statement tendered pursuant to the principle of exception to the hearsay rule. [ 3 ] In my view, the principles set out in that decision do not affect the ruling that I made in this case.

Nonetheless, it is prudent to briefly set out my reasons for this conclusion. [ 4 ] Bradshaw concerned the admissibility of a video recording of a re-enactment of a murder made by the co-accused in which he implicated Bradshaw in the murder. The co-accused subsequently pleaded guilty and was called as a witness in Bradshaw's trial. The co-accused refused to testify, so the Crown tendered the video of the co-accused's re-enactment. The Crown submitted that the statements made by the co-accused about the involvement of Bradshaw in the murder should be admitted as an exception to the hearsay rule.

The trial judge admitted the evidence and Bradshaw was convicted. [ 5 ] The Supreme Court found that the alleged corroborative evidence in fact did not corroborate any of the material aspects of the hearsay statement.

In its judgment, the Supreme Court set out directions to trial judges in determining whether corroborative evidence was in fact of any evidentiary value. [ 6 ] The court said that the trial judge's focus should be on ensuring that the evidence tendered to corroborate a hearsay statement is relevant, reliable evidence which establishes that the only likely conclusion is that the declarant has been truthful and accurate about the material aspects of the hearsay statement. [ 7 ] The court said that the trial judge should consider first whether the corroborative evidence goes to the truthfulness or accuracy of the material aspects of the hearsay statement.

In the case at bar, the corroborative evidence complies with that requirement.

That is, the physical injury suffered by the declarant and noted by the police, noted by the doctor and shown in the pictures filed with the court, corroborate the declarant's assertion that the defendant struck her in the face and head and strangled her. [ 8 ] The observations of the witness who overheard what appeared to be a quarrel between the defendant and the declarant in the declarant's home, and that witness who saw the physical interaction between them and saw the declarant near the home towards the main house on the property, also are corroborative of the declarant's statement that she and the defendant quarrelled, and she was afraid of the defendant and had to flee his presence. [ 9 ] Next, the court said that the trial judge should determine whether the corroborative evidence assists in overcoming the hearsay dangers raised by the tendered statement.

In the case at bar, one common hearsay danger, the unavailability of the declarant for cross- examination, is not present. The declarant testified and was cross-examined by both Crown and defence. [ 10 ] The hearsay danger which remains is the difficulty that a court may experience in assessing the truthfulness of the hearsay statement, because there was no contemporary cross-examination of the declarant. [ 11 ] As I noted in my ruling, the corroborative evidence in this case achieves that objective, that is, of alleviating the effective lack of contemporary cross-examination.

The court can listen to what the declarant said to the police officer because the statement was audio recorded. That is, the court can assess what that recording reveals about the declarant's demeanour and emotional state. Because there is a recording of the declarant's statement, there is an accurate record of what she said. The interviewing police officer did it so effectively and avoided the use of significantly leading questions. As well, the statement was made for the police relatively soon after the alleged event.

Thus, there is a good record of what the declarant actually said, how she said it, and when she said it. The statement itself is, for the most part, in the words of the complainant, with very little involvement from the police. [ 12 ] The corroborative evidence in this case is reliable in the sense that it strongly supports the content of the declarant's statement of the alleged assault. Thus, the lack of contemporary cross-examination is of little significance, because it is unlikely that such cross- examination would have changed the complainant's testimony in any significant way.

In addition, this trial had the benefit of the presence of the declarant for cross-examination in assessing the credibility of the complainant. [ 13 ] Last, the Supreme Court directed that the trial judge must consider whether the evidence, considered with the circumstances of the case, shows that the only likely explanation for the hearsay statement is the declarant's truthfulness about, or the accuracy of, the material aspects of the statement. [ 14 ] The question is also whether the corroborative evidence negates the likelihood of there being other alternative explanations for the statement which negatively affect its truthfulness or reliability. [ 15 ] Are there other rational alternative explanations for the statement of the declarant in this case which are inconsistent with its truthfulness or accuracy?

In my view, there are not. In this case, there is only one alternate explanation that I need to consider, and that is the account given by the declarant in their testimony. There are no other reasonable or even speculative explanations of the material aspects of the declarant's statement that are even remotely possible. [ 16 ] As I have already stated in my ruling, the declarant's testimony at trial was not credible and her explanations for the injuries, in particular, were not credible. I acknowledge that there may have existed a motive to lie about Mr.

Warkentin's conduct, because the declarant suspected that he had an intimate relationship with the complainant's adult daughter. That, however, is something that I must consider in assessing the weight I will give to the hearsay statement.

[ 17 ] For these reasons, I find that the decision in Bradshaw and the principles set out within it are consistent with the substance of my reasons for admitting the hearsay statement. [ 18 ] That deals with the Bradshaw issue. Next, I have to deal with the Crown's application to tender similar fact evidence. I will read that decision. That is a bit longer, but I will read it in. [ 19 ] The Crown seeks to tender similar fact evidence concerning an assault that the defendant committed against a woman in 2013.

The Crown says that the details of the incident are very similar to the circumstances of the case at bar and are probative of the charge against Mr. Warkentin. [ 20 ] The victim of that assault testified in a voir dire . The incident happened in the late fall and winter of 2013, and it is either in White Rock or Surrey. She said that she had had an intimate relationship with the defendant, but they did not live together. She said that she had gone to a pub in White Rock to associate with some friends. The initial intention was that Mr. Warkentin would pick her up when she was finished at the bar.

Things changed, because she phoned him and invited him to come down and have a drink with her and her friends. [ 21 ] The evening went very badly once Mr. Warkentin arrived. She said that he became very intoxicated and became obnoxious. She did not like the way he appeared to be flirting with the server. Eventually, she became so annoyed that she just left and walked home. When she got home, she went to bed. She said that early in the morning, that is, early in the morning from the late evening when she went home at 1:00 or so, Mr. Warkentin arrived at her residence and began yelling.

She was very concerned that he would wake the neighbours, and let him in. She said that he was very intoxicated. He was angry with her and he blamed her for him getting stopped by the police, and because of his state of intoxication, losing his licence. [ 22 ] She eventually told him that she was going to have a shower. She went into the bathroom and into the shower. A few minutes later she said that he came into the bathroom and suddenly punched her in the side of the head, knocking her down. She said he pulled her out of the tub and told her that he was going to kill her. He began to strangle her.

The choking was so bad that the victim said that she thought she was going to die. Her roommate, however, heard what was going on and said something, and this caused the defendant to let go of the victim. [ 23 ] He left the bathroom. The victim thought that he perhaps went after her roommate in some fashion, but she was not sure. The defendant left and, in fact, took the victim's car without her permission. She called the police.

He was later arrested and eventually became convicted of the assault. [ 24 ] Similar fact evidence is circumstantial evidence from which the Crown asks that the court, the trier of fact, make inferences which are probative of material issues at trial. It is essentially character evidence or evidence of discreditable conduct. Such evidence is presumptively inadmissible.

The general rule is that a court can only admit such evidence if the court determines that the probative value of the similar fact evidence outweighs its prejudicial effect. [ 25 ] The rule is described in the textbook, The Law of Evidence in Canada , [Second Edition], by Sopinka, Lederman and Bryant as follows: The Supreme Court of Canada has consistently stated that similar fact evidence is admissible only in exceptional circumstances.

The starting proposition is that character evidence is inadmissible given its low degree of probative force and the high degree of prejudice associated with it, but exceptional probative force in relation to the prejudice may render the evidence admissible. That is the end of the quote from that textbook. [ 26 ] Evidence of disreputable conduct from which it can be inferred that the defendant has a propensity to commit a certain kind of crime, is not enough. The evidence must be probative of a material issue at trial.

In the case at bar, the Crown is not seeking to use similar fact evidence to prove identity of the perpetrator, nor is this a case where the Crown seeks to have evidence relating to one count on an Information as being admissible to prove another count on the Information. [ 27 ] The prejudice that the rule seeks to avoid is, for example, the danger that the defendant may be convicted of an offence based not on the evidence at trial related to the charge that the defendant faces, but on the evidence of the prior act.

As well, fairness of the trial may be affected by the inordinate amount of time taken up by the court having to consider the details and significance of a prior crime, instead of concentrating on the evidence relating to the commission of the current charge. This may result in the tainting of the trial and adversely affecting the adjudication process by mixing up the details of the past crime with the evidence related to the current crime. [ 28 ] In R. v.

Handy , the Supreme Court of Canada set out some of the factors that courts must consider in assessing the probative value of similar fact evidence at paragraph 82 of that decision.

Factors which connect the similar fact evidence to the circumstances in the charged offence include proximity in time to the similar acts, the extent to which the other acts are similar in detail to the charged conduct, number of occurrences of the similar acts, circumstances surrounding or relating to the similar acts, intervening events, and any other factor which would tend to support the underlying unity of the similar acts. [ 29 ] What the court referred to as countervailing factors include the inflammatory nature of the similar acts, whether the Crown can prove its point with less prejudicial evidence, the potential distraction of the trier of fact from its proper focus on the facts charged and the potential for undue time consumption.

The court refers to these prejudicial factors as moral prejudice and reasoning prejudice. [ 30 ] The evidence of the victim of the offence in 2013 was certainly credible, and no issue was taken by the defence with their credibility or the accuracy of her testimony. The real issue, however, is what material issue or issues does it render more probable.

The inference that the Crown asks the court to make from the similar fact evidence is that the defendant has a propensity in certain circumstances to violently assault intimate partners when he is intoxicated, and their relationship is apparently ending somewhat suddenly, and done so by the intimate partner. The Crown asks for an inference that he has a propensity to use significant force

including choking or strangling the intimate partner. [ 31 ] That inference would be probative of two issues, the credibility and reliability of the statement given to the police by the complainant; and secondly, would it particularly support the Crown's position that the in-court testimony of the complainant is not credible?

That is, the question could be put this way, how likely is it, considering all the evidence presented in the Crown's case, that there is some other rational explanation for the injuries suffered by the complainant and as explained to the police by the complainant in her statement? [ 32 ] Given the circumstances that the complainant described, that is, Mr.

Warkentin's high intoxication, and including the complainant's anger at the defendant for apparently having an intimate relationship with her adult daughter, her determination that he must leave her premises immediately, thus signalling that their relationship was over; all of these support the inference that Mr. Warkentin assaulted the complainant in the same manner and for the same reasons that he assaulted the victim in the prior assault. [ 33 ] In my view, the probative value of this evidence is slight.

It would constitute another piece of circumstantial evidence which corroborates the statement given by the complainant to the police and which tends to show that the in-court testimony of the complainant is not believable, but the evidence does not relate to the particular circumstances of the crime charged and does not lend any strength to the facts that the Crown seeks to prove through this other evidence. [ 34 ] The evidence led by the Crown as corroborative of the contents of that statement is both reliable and cogent. All of it relates directly to the circumstances of the alleged offence.

The similar fact evidence has little probative force in these circumstances. For example, if I find that there are some significant problems with that statement, that is the statement of the complainant to the police, my view is that the similar fact evidence would have no value in bolstering its contents or otherwise negativing those problems.

My point here is considering that the factors referred to in Handy , above, that a court may consider in looking at the prejudicial effect of similar fact evidence, in looking at that description of what the court calls contravening factors, it is clear to me that the Crown can prove its case here with less prejudicial evidence. [ 35 ] The evidence tendered by the Crown as similar fact is quite prejudicial. It describes a vicious drunken attack on a woman whom the defendant threatened to kill, and then beat and strangled to the point that she thought she was going to die.

Her evidence portrays him as a drunken lout who acted inappropriately at the bar, who was rude and obnoxious when he came to her residence, and even took her car without her permission after he had beaten her. He may, as well, have menaced her roommate before he left. [ 36 ] Assessing this evidence as well, would require an undue amount of attention and time. The court would have to try to untangle the irrelevant or immaterial acts from the acts which are directly relevant to the point being made by the similar fact evidence. The court would have to be very careful in articulating that.

For example, rude, obnoxious and unacceptable behaviour at the bar and at the victim's home would not be material to the inference that the Crown wished the court to draw about this event. [ 37 ] All such effort would be for naught because the probative value of this similar fact evidence adds almost nothing to the strength of the Crown's case and the court would have to spend more time explaining how all this, although obviously prejudicial aspects of the evidence, did not affect his decision. [ 38 ] I find, therefore, that the prejudicial effect of the proposed similar fact evidence far outweighs the probative value and I find that it is inadmissible. (RULING CONCLUDED)