R. v. Jones, 2017 BCPC 442

Citation: R. v. Jones 2017 BCPC 442 Date: 20171214 File No: 38777-1 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. EDWIN DOUGLAS JONES REASONS FOR JUDGMENT ON EVIDENCE MOTION OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: P. Cheeseman Counsel for the Accused: C. Hunt Place of Hearing: Duncan , B.C. Dates of Hearing: October 26, 27, and December 14, 2017 Date of Judgment: December 14, 2017 INTRODUCTION

[ 1 ] THE COURT: Edwin Douglas Jones has been charged on an amended indictment on Information 38777-1. [ 2 ] On Count 1, there is an allegation that Edwin Douglas Jones (the “Accused”), on or about March 20, 2016, did break and enter a dwelling house situate at 3170 Gibbins Road, and commit an indictable offence therein, being an assault upon Samuel Williams, contrary to s. 348(1) (

b) of the Criminal Code . [ 3 ] On Count 2, the allegation is that Mr. Jones, on or about the same date, in committing the assault of Samuel Williams, did use a weapon, and that is contrary to s. 267 (

a) of the Criminal Code . [ 4 ] The matter came on before the court for trial on October 26 and on October 27, 2017. The Crown closed its case on October 27, 2017. In the course of Crown's case, a statement made by the Accused, Mr. Jones, was entered as an exhibit. [ 5 ] The issue that has arisen with respect to the matter before the court is whether or not that statement to the police should be admitted for the truth of its contents, or merely for the limited purpose of cross-examination of the Accused.

FACTS [ 6 ] In the course of the Crown's case, Constable Ryan Stevenson testified about a warned statement that was provided by the Accused to him. As I understand it, that statement was taken and recorded at the Duncan-North Cowichan detachment of the Royal Canadian Mounted Police. The statement was eventually transcribed into 15 pages. The statement is dated April the 18, 2016. [ 7 ] It is agreed by both Crown and defence that the statement provided by Mr. Jones is a voluntary statement. There are actually two aspects to the voluntary statement.

One is the transcribed portion of the statement provided at the police detachment. The second part of the statement is a continuation which is not recorded, but occurred at the Accused's residence following being driven there by Constable Ryan Stevenson shortly following the Accused's attendance at the police detachment. [ 8 ] In the course of the trial, before the counsel had agreed that there was no issue with respect to the voluntariness of the statement provided by the Accused, the following exchange took place between Crown counsel, Mr. Cheeseman, and Constable Stevenson, and Ms.

Hunt, counsel for the Accused. [ 9 ] I am quoting from the transcript of October 26, 2017 on page 15, commencing at line 34: MR. CHEESEMAN: Q Did -- did Mr. Jones provide you with a statement when you arrested him? A Yes, he did. Q And I'm not going to ask you about the contents of the statement so I won't -- I won't get into that. Did he provide you with any sort of an alibi? A During the statement, no. He alluded to he may have been out of town, but he said he would have had to have checked his -- his logbook at home. MS.

HUNT: Your Honour, just if I may, if there is going to be any kind of leading or any evidence from the officer about the comments Mr. Jones has made, we need to deal with the issue of voluntariness. THE COURT: Okay. Well, in a voir dire. MR. CHEESEMAN: Yes, Your Honour. MS. HUNT: So, first I would ask my friend if he could just articulate to the court why he is leading this information before we go forward. MR. CHEESEMAN: Well, I received alibi notice from my friend, so I -- I think the Crown is entitled to set out what alibi was given and the circumstances of the alibi that was provided to the police.

It's important because Your Honour is going to need to decide whether -- what weight to give to an alibi depending on what's provided to the police investigators. MS. HUNT: No issue with that, Your Honour. However, I would be submitting I do think Mr. Jones, based on my review of the material, Mr.

Jones' statement which would include these comments, in my submission, and I'll go into that further, does meet the test of voluntariness, so I would be admitting that the statement is voluntary, and these comments made outside of the recorded statement, if that's what I'm hearing, were voluntary, then I would be submitting to you that, if this is the case, if we are going to be leading this information through the officer, that Mr. Jones' entire recorded statement that's transcribed be provided to the court and tendered as an exhibit because this is -- THE COURT: In a voir dire? MS.

HUNT: Outside of the -- I -- I'm making this submission because I'm saying the entire statement is voluntary. [ 10 ] The submissions between counsel and to the court continued thereafter about the transcribed statement, and then, all before the actual transcribed statement was admitted as an exhibit, the following comments are made on page 19: MR.

CHEESEMAN: No, Your Honour, if the voluntariness is admitted, then we don't . . . need to enter the voir dire, we can just file -- I mean, I'm in Your Honour's hands, if -- if you watch the video, we can -- we can set that up and you can watch the statement in its entirety, or we can just file the transcript. I don't know what my friend wants to use it for. She's --

MS. HUNT: I would be submitting to Your Honour . . . and we may -- I don't know if my friend is prepared to get into this issue rightnow, or if we would have to stand down, I would be submitting that it is the statement of the accused, and that it would be submitted forthe truth of its contents. [11] Thereafter there were further discussions between the court and counsel, and then on page 20, line 23, the following discussiontook place: MR. CHEESEMAN: I suppose, Your Honour. I mean, the -- Mr. Jones was released from custody, and I think the ride home was justhe was given a ride home. There's [certainly] no issue with 10(

b) here, if so certainly my friend's admitting [the] voluntariness of all[the] statements made to the officer, I'm happy to proceed on that basis. And I -- I suppose that, Your Honour, I should -- now that myfriend is suggesting that . . . Crown needs to tender the statement for the proof of its contents the -- generally the Crown is able to choosewhether or not to take a statement of the accused so if I can -- if my friend relies on it, is she planning on the accused testifying, as thatwould also change my position on this because I don't think she -- my friend -- MS. HUNT: Well -- MR.

CHEESEMAN: -- can't force the Crown to enter a statement of the accused for the proof of its contents to relieve him of his burdento testify. That's the issue. [12] I can say that several similar comments were made by Crown counsel with respect to the use to which Crown intended to makeuse of the statement. [13] At page 23, starting at line 34, the discussion continues when Crown counsel says as follows: MR. CHEESEMAN: And you're absolutely right.

The Crown's intention will be that -- that it will be admissible only for the purpose ofcross-examination and so I'll -- I'll provide the transcript of the full warned statement, and then also ask the officer about the otherstatements made at the house. THE COURT: Yes. MR. CHEESEMAN: And those are -- the voluntariness is admitted but those statements are admissible only for the purpose of cross-examination so that's how we'll proceed with that. THE COURT: All right. MR.

CHEESEMAN: No -- no voir dire is needed because it's voluntariness is admitted, so we don't need to enter into a voir dire todetermine about that. [14] I can then say that the matter proceeded with further discussions and submissions, including about having to deal with therelease of certain witnesses, and then on page 27, the following exchange took place as part of the examination in chief of ConstableStevenson, starting at line 19: Q So, Constable Stevenson, I'd asked you before, you did -- Mr. Jones did provide a warned statement to you? A Yes. Q That was recorded and it was transcribed? A Yes, it was.

Q I'll just have you review that document, and does that appear to be the transcription of the statement? A It does appear to be, yes. MR. CHEESEMAN: So, Your Honour, I'd ask that that be filed as the next exhibit, and just for the purpose of cross-examination. THE COURT: Thank you. THE CLERK: That will be Exhibit 3.

THE COURT: That's Exhibit 3, thank you, Madam Clerk. [15] After Crown closed its case, the issue then was resurrected by defence counsel and the issue as to whether or not the statementthat had been entered as an exhibit was then before the court for the truth of its contents or merely for the limited purpose of cross-examination of the Accused. POSITION OF THE APPLICANT [16] The applicant, being the Accused, submits that the statement should be admitted for the truth of its contents because the Crownhad led the statement as part of its case.

In the alternative, it is submitted by the applicant that there is some limited case law to suggestthat statements may be entered for the truth of its contents, even if used only by the Crown for the purposes of cross-examination. [17] Defence has submitted and places reliance on a number of cases which are as follows: 1. R. v. Rojas, 2008 SCC 56 , [2008] 3 S.C.R. 111, [2008] S.C.J. No. 58;

2. R. v. Hughes, (S.C.C.), 1942 R.C.S.; 3. R. v. Deboo, 2016 BCCA 62 ; 4. R. v. Gross, 2013 BCCA 46 (Q.L.), [2013] B.C.J. No. 2258; 5. R. v. Ziegler, 2010 BCCA 504; 6. R. v. McKerness, 2007 ONCA 452 ; 7. R. v. Selvanayagam, 2011 ONCA 602 , 281 C.C.C. (3d) 3; 8. R. v. Rogers (1986), 16 O.A.C. 280, [1986] O.J. No. 802; 9. R. v. McKillop (1948), (ON CA), 90 C.C.C. 209 (Q.L.) (Ont. C.A.), [1948] O.J. No. 46; 10. R. v. Syliboy, [1989] N.B.J. No. 1159; and, 11. R. v.

Latta, 1972 Altascad 76 , (1972) 1972 ALTASCAD 76 , 6 W.W.R. 147. [18] In essence, the defence application is based on the proposition that, although a very brief the number of questions were posed,as I have recited above from the October 26, 2017, transcript on page 15 and commencing at lines 34 during the examination in chief ofConstable Stevenson, that amounted to the commencement of incorporation of the statements made by the Accused into the Crown'scase; hence flowing from that the fact, that the statement should be admitted for all purposes and for the truth of its contents.

POSITION OF CROWN [19] Crown's position is that the statement should not at this point in the trial be admitted for the proof of its contents. Crown thensubmits that the decision how to use the statement is that of Crown. Crown says that it indicated at the time that the statement wasplaced before the court, once it was agreed that the statement was voluntary, that it was then to be held only for the purposes of cross-examination of the Accused on the statement, should he take the stand. CROWN CASES AND AUTHORITIES [20] Crown has relied on a number of cases, as well as extracts from various texts on evidence.

The following are the authorities andtexts relied upon by Crown: 1. excerpts from The Law of Evidence in Canada, A.W. Bryant, S.N. Lederman and M.K. Fuerst, 4th ed. (Markham: LexisNexis2014); 2. excerpts from Criminal Law Evidence, Practice and Procedure, J. Gibson and H. Waldock, (Toronto: Thomson ReutersCanada) 12(b), Online Westlaw Next Canada, Release April 2017; 3. R. v. Turpin, 2005 BCSC 475; 4. R. v. Poon, 2006 BCSC 683; and, 5. R. v. Lind, 2016 BCPC 463.

ANALYSIS [21] I accept as a correct statement of the law that Crown cannot tender any statement made by an accused to a person in authorityunless the statement is proven to be voluntary. Once that statement is proven to be voluntary, the Crown can either introduce it as part ofthe Crown's case in chief, in which case the statement is admissible for the truth of its contents, or the Crown can hold a statement forcross-examination, in which case, if the accused testifies and the Crown puts the statement to the accused, the statement is admissible forthe truth of its contents. (See Law of Evidence in Canada, A.W.

Bryant, S.N. Lederman, and M.K. Fuerst, 4th ed., supra). That textspecifically sets out, in ss. 8.164 and 8.165 and 8.170, as follows [as read in]: [8.164] On occasion, the Crown may wish to use a confession only if the accused testifies. This is particularly so if the statementcontains matters helpful to the defence which would not be introduced unless the accused testified. [8.165] In R. v. Krause, the Crown proved the voluntariness of a statement in a voir dire, but Crown did not adduce the statementat trial before the close of its case. The Crown then used the statement to cross examine the accused.

Although the case turned on adifferent point, the Supreme Court appeared to accept this trial practice. The only requirement is that the statement pass thevoluntariness test. [8.170] A voluntary statement first tendered by Crown in cross-examination which the accused admits making is at an admissionand is admissible as proof of the truth of its contents. Furthermore, if the accused denies making the statement, the Crown may provethe statement subject to the collateral fact rule.

It is then admissible with respect to the truth of its contents. [22] Crown has correctly cited other authorities which support the proposition that Crown has the discretion with regards to the useof statements made by the accused; in that regard, the decision of R. v. Turpin, 2005 BCSC 475 is apposite. It makes reference atparagraph 12 to the Krause case and sets out the law that once the voluntary statement is ruled admissible, the Crown is able to hold it inreserve for use in cross-examination if the accused testifies.

[23] I also accept as a correct statement of the law the reference in R. v. Poon (supra), that Crown does not need to indicate until theend of its case what use it intends to make use of the statement of an accused. That proposition is supported by the Poon decision atparagraphs 22 to 25 inclusive. Paragraph 25 stresses that trials are a fluid and dynamic process and that accordingly Crown must be freeto conduct the case in response to the variables and uncertainties that occur during the trial. [24] I am also of the view that the decision of R. v. Groves, (supra) provides some useful guidance for this case.

At paragraph 41 ofGroves, Justice Frankel of our Court of Appeal canvasses the McKerness case decided by the Ontario Court of Appeal. That case wascited as authority for the proposition that a prior inconsistent statement not adopted by the appellant only serves to impeach hercredibility; Frankel J.A. then goes on to say that McKerness does not appear to be the law in the Province of British Columbia. Atparagraph 42, Justice Frankel sets out the reasoning for that conclusion, including a reference to the third edition of Brian S.N. Ledermanand M.K.

Fuerst, The Law of Evidence in Canada (supra), 3rd edition, where the provisions of

section 8.169 are then quoted as follows[as read in]: A voluntary statement first tendered by the Crown in cross-examination which the accused admits making is an admission and isadmissible as proof of the truth of the contents. Furthermore, if the accused denies making the statement, the Crown may prove thestatement subject to the collateral fact rule. It is then admissible with respect to the truth of its contents. [25] At paragraph 44, Justice Frankel accepts that the law in British Columbia is reflected in the decision of Mr. Justice Finch, as hethen was, in R. v.

Tran, 1999 BCCA 535, at paragraph 24 which reads as follows: Prior inconsistent statements of an accused are treated differently from those of other witnesses. Such a statement by an accused may beused by the jury as evidence going to the substantive issue of guilt, and not just credibility: see R. v. Mannion, (SCC),[1986] 2 S.C.R. 272 [other citations omitted] and R. v. Richards (1997), (BC CA), 87 B.C.A.C. 21 at pp. 36 37.

There was no need for instructions to the jury limiting the use they could make of the appellant's prior inconsistent statements, nor wasthere a requirement that the accused adopt a statement before it could be considered as evidence against him. There was no error by thejudge in her instructions on this issue. [26] What is most significant is paragraph 37 of Groves, in which Justice Frankel makes the following comments: . . . However, this court has held that when an accused is cross-examined on a prior statement, the trial judge has a discretion to permitall or part of the statement to be marked as an exhibit.

In exercising that discretion, the judge will take into consideration the extent ofthe cross-examination. [27] Then cases are cited in support of that proposition, and thereafter Justice Frankel continues: There is no rule that the whole of an accused’s prior statement must be placed in evidence if the Crown refers to parts of it in cross-examination.

CONCLUSIONS [28] Essentially, what I draw from the case authorities, to which I have been referred, is that discretion does remain in Crown as tothe use of a statement that has been tendered (as it has been in this case) on the basis where Crown has stipulated that it has been entered,but for limited purposes, and those limited purposes being for the purposes of cross-examination.

I am of the view that the mere fact thatthere were some preliminary questions raised in the examination in chief of Constable Stevenson, that this was not sufficient in order (ascharacterized by defence) to “start the train running” such that the statement is now before the court for the truth of its contents. [29] Accordingly, I am of the view that the statement is still before the court for a very limited purpose and that is the limitedpurpose which Crown clearly set out prior to the introduction of the statement and the marking of it as Exhibit 3. [30] In my view, defence is not in any way prejudiced by the limited purpose for which that exhibit has been entered.

The defencenow has a clear understanding. If alibi evidence is called and in particular testimony is provided by the Accused in this case, as to whatuse will then be made of the prior police statement in dealing with any alibi that may be raised by the Accused in his testimony. [31] Therefore, in conclusion, I find that the statement that is presently before the court is only there for the limited purposes ofcross-examination of the Accused and is not before the court as being admitted for the truth of its contents. [32] That concludes my reasons with respect to this matter. [REASONS FOR JUDGMENT CONCLUDED]