R. v. Belcourt, 2017 BCSC 2599

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Belcourt, 2017 BCSC 2599 Date: 20170216 Docket: 149245-4 Registry: Victoria Regina v. Andrew Jonathon Belcourt Samuel McGrath Restriction on Publication: Pursuant to 486.5(1) C.C.C. Before: The Honourable Mr. Justice Bracken Oral Ruling on Cross-examination of Accused re statements to Mike Rennie Counsel for the Crown: P. Weir and C. Jennings Counsel for the Accused Belcourt: T. Russell Place and Date of Trial/Hearing: Victoria, B.C. February 16, 2017 Place and Date of Judgment: Victoria, B.C.

February 16, 2017 [ 1 ] THE COURT: The accused seeks an order that Crown counsel be prevented from asking Mr. Belcourt certain questions in cross-examination. The context of the application is a retrial before a jury of the accused on a charge of second degree murder. The key issue the jury will have to decide is whether Mr. Belcourt is guilty of second degree murder or manslaughter. In fact, the accused offered a plea of manslaughter at the opening of the trial.

That plea was not accepted by the Crown. [ 2 ] The facts alleged are that the accused and another man, Sam McGrath, went to the apartment of the victim intending to rob him of a large amount of marihuana they believed he kept in the apartment. They broke into the apartment sometime around midnight and one of them was carrying a 12-gauge pump-action shotgun. It is anticipated that the accused will admit that he was carrying the shotgun while it was loaded, and that it discharged first accidentally into the ceiling of the apartment, and then a second time when the muzzle of the shotgun was pointed at Mr.

Hankel, the victim, striking him in the side of the head and resulting in his death. [ 3 ] The theory of the Crown is that the accused intentionally shot Mr. Hankel because he was yelling after the first shotgun discharge and would not keep quiet, and because the accused's face mask covering fell away from his face, which allowed Mr. Hankel to identify him. The Crown theory is that the accused shot Mr. Hankel to eliminate a potential witness. [ 4 ] The theory of the defence is that the shotgun accidentally discharged into the ceiling and when the accused turned to tell Mr.

Hankel to stop yelling, the gun was pointed at him. The accused pumped the action to eject the spent shell and to move a new shell into the breach from the tube magazine. In doing so, the shotgun discharged accidentally. [ 5 ] A firearms expert has testified that the shotgun has a somewhat unique feature that allows the gun to fire if the trigger is depressed when the pump action is used. The effect is to cause the shotgun to discharge as soon as a live shell is inserted into the firing chamber and the shell is advanced by moving the pump action fore piece forward. [ 6 ] There is evidence from Ms.

C.Y. that she and the accused were good friends and that the accused was staying at her apartment at the time of the robbery. She was aware of the robbery that was planned for that evening. She said that the accused and McGrath returned to her apartment and appeared to be out of breath and anxious. McGrath later left the apartment, and during the course of the next few hours, Ms. Y. said that the accused told her that when the first shot was fired into the ceiling, Mr. Hankel started shouting. The accused told him to be quiet.

He told her that at that time his mask fell off, allowing his face to be seen, and he shot Mr. Hankel. [ 7 ] Similar evidence was given by Mr. Max Deleeuw who was also a friend of the accused. He said that he received a call from the accused the morning after the robbery and shooting took place. The accused asked him for a ride to the Shawnigan Lake area and Mr. Deleeuw agreed to provide it. He drove to Ms. Y.’s apartment, where he met the accused and McGrath. He said that the accused told him that he shot Mr. Hankel because he would not keep quiet and because the accused's mask fell off. [ 8 ] Both Ms.

Y. and Mr. Deleeuw admitted to lying in the course of giving statements to the police and both also admitted lying under oath at the preliminary inquiry of the accused and McGrath. Counsel for the accused conducted extensive cross-examination of both witnesses and, as a result, the accused argues that both are unreliable witnesses that should not be believed by the jury.

[9] The Crown wishes to cross-examine the accused respecting a telephone call that was made to the accused's stepfather, MichaelRennie, shortly after the incident. The call was made from Ms. Y.'s apartment. The Crown wishes to question the accused as towhether, in the course of that telephone call, the accused told Mr. Rennie that he shot Mr. Hankel because his mask had fallen off. Thus,the Crown seeks to cross-examine the accused on an alleged admission he made to his stepfather shortly after the events giving rise tothe charges, but the Crown does not propose to call Mr. Rennie as a witness. [10] Mr.

Rennie was called as a Crown witness at the first trial of this matter. That trial included the co-accused McGrath. Theaccused submits that Rennie was shown to be a completely unreliable witness at the first trial and suggests that the Crown is not callinghim at this trial because he is an unreliable witness. The Crown does not accept that as the reason it is not calling Rennie, but goes onlyas far as suggesting other reasons why he is not being called. [11] It is clear from admissions filed that Mr.

Rennie played a role in the planning of the robbery, either by suggesting the target orpassing on information he had learned from others about the target. He provided the shotgun. He also provided the ammunition. [12] It does not seem disputed that the accused called him soon after he arrived at Ms. Y.'s apartment after the events took place. Italso seems to be accepted that he discussed what happened, in particular that the robbery has not gone as it had been planned. [13] The submissions and material suggest that Rennie had acted as a confidential informant who led the police to the accused andMcGrath.

It is also alleged that he was paid several thousand dollars for the information he provided. In addition, it is suggested that hetold the police that the accused had shot Mr. Hankel because the accused's face mask had fallen off. [14] Through his cross-examination, counsel for the accused suggested that Ms. Y. had provided that information to Rennie and notthe accused. That suggestion has been clearly planted in the cross-examination of Ms. Y. The Crown says it is entitled to ask theaccused if, in fact, Rennie learned that from the accused and not Ms. Y.

The Crown argues that by disallowing that line of cross-examination, the jury might well be misled. [15] The accused says that if the Crown wanted to explore that line of questioning, it should have called Rennie. By failing to do so,it allows the Crown to put a highly prejudicial question to the accused, which simply by being asked suggests to the jury that the accusedtold Rennie the same thing as the Crown says she says he told her and Mr.

Deleeuw. [16] The accused also says that the Crown is aware, from the evidence of the accused at the previous trial, that the accused willdeny telling Rennie that he shot the accused because his mask fell off, exposing his face to Mr. Hankel. The accused submits that theCrown has no good faith basis to put that question to the accused and that the prejudicial value of the question and answer exceeds anyprobative value, as there is no other evidence about what the accused said to Rennie in that telephone call. [17] The accused relies primarily on R. v. Mallory, 2007 ONCA 46.

In that case, one of the accused sought to limit the right of theCrown to cross-examine him on certain inculpatory statements that he made to what were described as “certain unsavoury witnesses,including jailhouse informants”. The Crown had chosen not to call those individuals as part of its case. The trial judge in Mallorydeclined to do so. [18] On appeal, the court canvassed the law as set out in R. v. Howard (1989), (SCC), 48 C.C.C. (3d) 38 (S.C.C.),and R. v. Lyttle, 2004 SCC 5.

It is clear from Mallory that it was anticipated in that case that the questions would be extensive and theaccused would deny all of the allegations that would be embedded in the questions. [19] Rennie's evidence is summarized in an excerpt provided from the appellant's factum prepared for the Court of Appeal followingthe first trial. In that

summary, Rennie said that he had heard from the accused briefly after the robbery suggesting that things had gonesideways. Rennie told the police that the accused told him that the gun went off, that he shot the victim in the side of the face. He saidhis mask fell down and he had no choice, said he turned off the phone for the evening because he did not want to go to jail for murder. [20] He also was cross-examined extensively on his dealings with Constable Jeff Mason, one of the police officers investigating thismatter, at his first trial.

It was seen that he had given statements through his dealings with the police that were inconsistent with hisevidence at the trial, and it was suggested that the first time his statement to the police that the reason for the shooting was the maskfalling off was March 4, after he had met Ms. Y. to receive a laptop of the accused on March 4.

He denied that meeting. [21] Much of his evidence at the trial was challenged and the accused says that he is an unreliable witness, that the Crown knows it,and has simply chosen not to call him as a witness for that reason. [22] The accused also argues that the timing of Rennie's evidence and advice to the police about what happened, specifically thealleged admission that the accused shot Mr. Hankel because his mask had fallen off, strongly suggests that he got that information fromthe meeting with Ms.

Y. at the inner harbour. [23] Most of the foundation for the submission that the Crown has no good faith basis to put the questions about the allegedadmission made by the accused to Rennie comes from the first trial. The Crown, for its part, does not concede that Mr. Rennie isunreliable or that it is not calling him for that reason, although it seems fair to say that the evidence certainly suggests that he has at leastan unsavoury character. [24] However, it must be understood that this is a new trial, not an extension of the previous trial.

It is not open to me to makefindings of fact on what happened at that trial. I was referred to the charge delivered to the jury in that case and, not surprisingly, there isno clear statement of how the jury should view any statement or evidence. Nothing can be drawn from the verdict of the jury either. [25] At para. 225 of Mallory, the court said: [225] By the time of this appeal, any confusion resulting from R. v. Howard, supra, was resolved by the Supreme Court of Canada’sdecision in R. v. Lyttle ... After discussing the importance of the right to cross-examine, the Supreme Court in R. v. Lyttle noted, at para.

63 , that the “conclusion that Howard mandates or authorizes the requirement of an evidentiary foundation for every factual suggestion put to a witness (expert or not) in cross-examination is misplaced.” The Supreme Court also confirmed, at para. 47, that counsel is entitled to cross-examine a witness “regarding matters that will not be proven independently, provided that counsel has a good faith basis for putting the question”. [ 26 ] The Crown referred to Lyttle at paras. 41 and 42 where the court emphasized the importance of the right of cross-examination.

At para. 44, the court stated: [44] The right of cross-examination must therefore be jealously protected and broadly construed. But it must not be abused.

Counsel are bound by the rules of relevancy and barred from resorting to harassment, misrepresentation, repetitiousness or, more generally, from putting questions whose prejudicial effect outweighs their probative value ... [ 27 ] At para. 47, the court went on to say: [47] Unlike the trial judge, and with respect, we believe that a question can be put to a witness in cross-examination regarding matters that need not be proved independently, provided that counsel has a good faith basis for putting the question.

It is not uncommon for counsel to believe what is in fact true, without being able to prove it otherwise than by cross-examination ; nor is it uncommon for reticent witnesses to concede suggested facts — in the mistaken belief that they are already known to the cross-examiner and will therefore, in any event, emerge. [Emphasis in original] [ 28 ] Clearly the Crown has evidence in the form of statements made by Rennie to the police that provide a foundation for the questions it wants to put to the accused.

Where there may be questions about Rennie's reliability, I am not able to conclude that he is not being called for that reason. The Crown has given other possible reasons why he might not be called, but none are particularly convincing, given he testified at the first trial, so obviously those problems, at that time at least, were not insurmountable. [ 29 ] However, on the evidence before me, I conclude that the Crown does have a good faith basis to put the questions to the accused.

I am not prepared to disallow those questions on an absence of good faith on the part of the Crown. [ 30 ] The accused next argues that the very putting of the questions to the accused in the circumstances of this case is highly prejudicial and that the expected denial has no probative value.

The accused notes that in Mallory , the court sent the case back for a new trial with the comment at para. 257 that even if the court was satisfied about the Crown's good faith foundation, the trial judge erred in failing to consider whether the probative value of the questions was outweighed by the prejudicial effect. [ 31 ] In Mallory , the court gave guidance on how the trial court should approach the question.

At paras. 268 and 269, the court said: [268] After ascertaining the full scope of the cross-examination proposed by the Crown, the trial judge will be in a position to weigh the relevant factors to determine whether the Crown’s good faith in the reliability of the evidence is justified, and to balance the probative value of the cross-examination against the dangers of cumulative suggestions by the Crown about information provided by unsavoury witnesses and jailhouse informants. [269] In making a decision whether to limit the proposed cross-examination, the trial judge should consider the scope of the cross- examination proposed by the Crown, the relevance of a prolonged cross-examination about the circumstances surrounding the admissions, any repetitious nature of the cross-examination, the relevance of any recantations, the character of the recipients of the purported admissions as unsavoury witnesses and jailhouse informants, and any other circumstance that would affect the determination of whether the prejudicial effect of the proposed cross-examination is out of proportion to its probative value. [ 32 ] As noted, it was clear in Mallory that the Crown contemplated something of a prolonged cross-examination with repeated questions to and denials from the accused about the statements he allegedly made.

There were several statements made to more than one person. [ 33 ] Here the Crown wants to put questions to the accused about the telephone conversation he had with Rennie shortly after Mr. Hankel was killed. The Crown does not appear to plan a prolonged or repetitive cross-examination. The character of Rennie is shown by some of the facts alleged in the application to be of a somewhat unsavoury variety. Those facts do not appear to be contested by the Crown. [ 34 ] His role as a confidential informant, as well as someone who was involved in at least some of the planning of the robbery of Mr.

Hankel, is additional evidence of his character. [ 35 ] The defence is expected to ask the jury to find that Y. and Deleeuw are not reliable witnesses and should not be believed as to the alleged admissions they say were made by the accused. He will likely ask the jury to find while Y. told Rennie the accused had made the admissions, that she should not be believed and therefore Rennie should not be believed.

The accused submits that by allowing the questions to be put to the accused about the inculpatory admissions he is alleged to have made to Rennie, the Crown will be allowed to leave the question with the jury that Y.'s evidence is consistent with what the accused himself told Rennie, without having to expose Rennie to any cross-examination on that point or on his general credibility.

By doing so, the accused says that the Crown will have the benefit of the suggestion to bolster the credibility of Y. and possibly Deleeuw without the risk of exposing Rennie to cross-examination. [ 36 ] The accused says further that there can be no probative value from the expected answers of the accused. There is no other evidence to support the allegation that the accused made those admissions to Rennie. Ms.

Y. said she was aware that the accused made a telephone call to Rennie from her apartment shortly after the robbery, but she did not hear what was said. [ 37 ] In my view, while there is no expectation the cross-examination will be prolonged or repetitive, the prejudicial value of the proposed line of questions does exceed any probative value that might flow from the expected answers. Perhaps something might be

taken from the demeanour of the accused and how he answers the questions, but that is not likely nor, in my view, would have outweighed the prejudicial effect of the questions. [ 38 ] I therefore allow the defence application and will not allow the Crown to question the accused about the alleged admissions if Rennie is not called as a witness. [ 39 ] The second aspect of the application deals with where the ammunition for the shotgun came from and perhaps some other related issues that apparently arise from evidence that Mr.

Rennie gave to the police. [ 40 ] The defence says I should not permit any cross-examination on those issues either. However, the Crown appears to have a good faith foundation from the various statements made by Rennie, and I find there is no reason to prevent the Crown from exploring those issues. Nor is there anything so prejudicial in that line of questioning that might exceed any probative value, thus I will allow those areas to be explored in cross-examination. “J. K. Bracken, J.” The Honourable Mr. Justice Bracken