R. v. Koonark, 2016 NUCJ 29

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Koonark, 2016 NUCJ 29 Date: 20161205 Docket: 11-15-153 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused Todd Koonark ________________________________________________________________________ Before: The Honourable Mr. Justice Bychok Counsel (Crown): Philippe Plourde Counsel (Accused): Lana Walker Location Heard: Pond Inlet, Nunavut Date Heard: September 20, 2016 Matters: Voir Dire; Criminal Code of Canada , RSC 1985, c C-46, s.151; s. 152 ; s. 173(2) ; s. 271 REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] Todd Koonark is charged with four sexual offences. The incident took place in Pond Inlet on November 1, 2015. The next day, the fourteen-year-old complainant gave an audio statement to the police. Her statement was twenty-one minutes long. The accused was arrested less than an hour later. The complainant died on March 15, 2016, before the trial could be held. [ 2 ] The Crown wants to use the deceased complainant’s statement as evidence at the trial. This application is about whether the law will permit the Crown to do that. [ 3 ] The Court heard evidence on September 20, 2016.

The parties submitted an Agreed Statement of Facts . That statement outlined some of the relevant facts concerning the statement. The Crown played the complainant’s statement. Mr. Plourde and Ms. Walker then argued their respective cases. Both lawyers also referred to their written positions which they had given to the court. Their able and focused arguments have helped me a great deal. I reserved my decision to consider the evidence. These are my reasons for decision. II.

ISSUES [ 4 ] There is one issue I must decide: is the statement made by the complainant admissible in evidence at trial? [ 5 ] For the reasons which follow, I rule that the laws of evidence do not permit the Crown to use the statement. III. ANALYSIS A. The law [ 6 ] We have laws which tell us what evidence a court may receive during a trial. These laws are designed to ensure that an accused person gets a fair trial. If a piece of evidence is relevant, then a court may receive it. That is, evidence which will help the court decide on the issue(

s) before it. [ 7 ] Every day, criminal courts hear from witnesses who have relevant information to share. Once they tell their story, the lawyer for the other side has the right to cross-examine them. This right to cross-examine a witness is one of the most important parts of our justice system. Cross-examination allows the evidence of a witness to be tested. It helps the court answer a number of very important questions. For example, is the witness being honest? Does the witness have a reason to lie, to exaggerate, or to withhold information? Is the witness biased?

Was the witness in a position to see or hear what happened? Was the witness ill or intoxicated so that their memory might have been affected? [ 8 ] In this case, the witness has died. The Crown wants her statement to be accepted as truthful evidence of what happened. If this were to happen, the accused’s lawyer obviously would not be able to cross- examine, or test, the witness. The court would only have her twenty-one minute statement. [ 9 ] An out of court statement not subject to cross-examination is called hearsay. According to the laws of evidence, hearsay, by

definition, is not admissible. That is because it cannot be tested by cross-examination. Over the years, though, the law has recognizedthat it would be unfair to keep out all hearsay. Certain hearsay may now be received in court after a principled analysis. This analysisfocuses on two key points. First, will the evidence be lost or unavailable to the court if it is not accepted? We call this the ‘necessity test’.Second, is the hearsay trustworthy and reliable? We call this the ‘reliability test’. [10] Both parties agree the necessity test has been met. The complainant has died.

The Crown’s application, then, will be decidedaccording to the reliability test. [11] The reliability test has two parts. If either

part is satisfied, the statement may be admitted as evidence. The first

part concerns thecircumstances in which the statement was made. Sometimes, it may be clear from what was happening that the statement was truthful.The second

part concerns whether the accuracy and truthfulness of the statement may be tested without cross-examination. In thesecases, the statement may be admitted into evidence. In everyday English, I have to ask myself if I have enough information to assess thetruth and accuracy of the statement despite the lack of cross-examination. I have to weigh the danger of admitting untested hearsayagainst those factors the Crown says mitigates those dangers. In this case, I have to look at all relevant factors around what happenedwhen the statement was made, and what the statement actually says.

I have to find on a balance of probabilities that the statement isreliable before it can be admitted as evidence (R v Khelawon, 2006 SCC 57 , [2006] 2 SCC 57, 2 SCR 787; R v Taylor (2012),ONCA 809, 2012 ONCA 809 , 294 CCC (3d) 483; R v Threefingers (2016), ABCA 225, [2016] AJ No 759 (QL)). B.

Position of the parties [12] The Crown says the following factors prove the statement is reliable: it was taken by a uniformed police constable in thedetachment; it was audio taped less than twenty-four hours after the incident; the court can hear how she answered the questions; shehad no reason to lie; and she could not be mistaken because the assault happened to her. [13] Defence counsel says the statement is not reliable. She says the complainant’s sincerity and ability to recall and relate her storycannot be tested.

She says it is impossible to know whether the complainant understood the seriousness of the possible consequences ofher complaint. She also says the complainant’s memory was affected by alcohol, and was unreliable. C. The statement [14] There are serious problems with the complainant’s statement under both parts of the reliability test. I’ll look first at the taking ofthe statement. [15] The fact that the statement was taken at a police detachment does not guarantee that the complainant was being truthful.

Theinvestigator could easily have made the fourteen-year-old complainant swear an oath, or promise, to tell the truth (the same oath orpromise a witness must take in court). Oaths and promises are extremely important. Having to swear an oath, or promise, hits home thatyou must tell the truth. There was no evidence why this was not done. [16] The investigator did not explain the process to the young complainant. He did not explain to her the seriousness of the process. Hedid not explain to her the serious consequences to the accused of her claims. He did not try to make sure she understood what washappening.

None of these basic things were done. There was no evidence as to why these basic things did not happen. [17] The two points I have mentioned are extremely important. It is hard for anyone to have to deal with the police. This is especiallytrue of young people without much life experience. I cannot say the complainant understood the gravity, or seriousness, of giving astatement to the police. Or whether she understood the consequences, or effects, her complaint would trigger.

[ 18 ] I cannot say the statement is reliable simply because of how it came about. There are so many unanswered questions, the statement troubles me. I now turn to the second part of the test: can the accuracy and truthfulness of the statement be tested without cross- examination? [ 19 ] The statement is only twenty-one minutes long. It is not very detailed. That may be because she said she drank “three or four” cups of home brew before the incident happened and was drunk { Victim Statement , Court Record, page 8, line 18 [Statement] } , page 2, line 5}.

It may be because the investigator did not ask her for more detail. Whatever the reason, it is not clear what exactly happened. She said: So Todd was saying stuff about M like he told her that he likes him a lot and … he told her that he wants to have sex. M grab uh … I tried getting uh cigarette so I took it then I light it. M took my arm, went here and pushed me there went on top of Todd.

He started doing stuff like that and he started asking me if I have hair down there and started asking if I had sex before, asking who was the first person and all that so we got drunk. { Statement , p 2, lines10-14} [ 20 ] A bit later, she continued: I was there sitting like this, going like that, just sitting around listening to them talking. Todd came, he went on top of the thing and I was like this. He started talking to me. He started tellin (sic) me to go to the room with him.

I said … I was lying down like I was lying I have a boyfriend like I had an excuse … I told him not to do this … So he went on top of my leg and went like that, tried to be like that and wanting me to go to the room with him. Started touching me here and started going up and starting down belly and he was … his head was here doing that and I was just like that trying to do that but I was scared so I just frozed [sic] and he just started doing that. { Statement , p 2, line 18 to page 3, line 8} [ 21 ] The investigator did not ask any follow up questions to get more detail.

I just do not know what all that means. [ 22 ] The complainant did say later: He started going up my boobs and the other one. Started going here but my pants were tight so he couldn’t. I just his hand [sic] and pushed it away; started … he kept doing that over and over … He started asking me to go to his room but I said no. I kept telling that … I kept lying to him that I have a boyfriend and I said I won’t cheat, I won’t do anything but he kept doing that over and over and he grabbed my hand; went to the washroom. He pulled his pants and underwear down. I got angry … I got very mad.

I told him to put his pants up again like pull his pants up so he did and he said he was gonna pee. He wanted me to stay there to watch. { Statement, p 4, lines 8-16} [ 23 ] Later in the statement, the investigator did ask for more detail about when he pulled his pants down. She added the following: “He was like ‘Grab my penis. It’s gonna be good for you’ and all that. I punched him a few times. I got angry a lot”. { Statement , p 6, lines 11-12} [ 24 ] In terms of reliability, this part of the statement reveals two more problems.

First, when the complainant says the accused “started going here but my pants were tight but I couldn’t”, what does that mean? “I just his hand and pushed it away”. What was going on exactly? What was he doing “over and over”? I could not watch her actions. Once again, it was never fleshed out. Too much of her story is left to the listener’s imagination. [ 25 ] The statement was only audio recorded. It would have been so much more helpful if it had been video recorded. Video recordings help the court assess a person’s demeanour while they are answering questions.

A sworn video statement gives the court the best evidence. This complainant also said many times that someone did “this” or “that”. None of those hand or body movements could be caught on the audio recording. The prosecutor said there was a video recorder available at the detachment, but there was no evidence to explain why the statement was not video recorded. [ 26 ] Next, the complainant did not at first mention the vulgar comment about the penis, or the fact she punched the accused three times.

At face value, if these events happened, one would expect a witness to remember them and to talk about them up front. They would be important to talk about. It may be she was nervous when she gave her statement, and she simply forgot to talk about it at first. Maybe it would have come out if the investigator had taken the time to help her through her story. Or maybe she was not being truthful when she was given a chance to add extra information, in order to make her story more compelling. Maybe it was because she was drunk on home brew at the time, and has a shaky memory.

This is precisely the situation where a fair and thorough cross-examination would help the court get to the truth. It shows the very real dangers of letting a statement go into evidence without cross-examination. These concerns undercut my ability to say the statement is reliable. I simply cannot say the statement is as reliable as a truthful account of what happened. [ 27 ] There is also no evidence about the complainant. I don’t know anything about her except she was fourteen-years-old. Was she still in school? Was she a good student? If not, why not? Did she have any learning disabilities?

Was she mature or immature for her age? Did she have good mental health? Did she have a youth court record? Near the end of the statement, the investigator asked her if her parents were at home. She answered: “Yeah, but I’m gonna get into trouble if I tell them about this” { Statement, p 8, line 18}. This comment could be innocent. But it could also mean she had something to hide about what happened. Why would she have been in trouble with her parents if they had found out what happened? Was there more to the story than she told the police?

Answers to these questions would have helped me assess the truthfulness and reliability of this young person’s statement. But the witness is dead; these questions can never be answered. [ 28 ] I therefore cannot say that the statement is either reliable or trustworthy. [ 29 ] I now consider the possibility that I am wrong and my analysis is incorrect. That the trier of fact, be it judge or jury, should be able to hear and weigh, or consider, the statement. In other words, that the statement is admissible. And it should be left to the judge or jury to decide.

The law calls this “ultimate reliability”. [ 30 ] There are so many problems with the statement, I believe it would seriously prejudice the accused’s right to a fair trial. As I said earlier, too much of the statement is left to the imagination. These difficulties, which go right to the very heart of the charges, cannot be tested by cross-examination. It would be unsafe to base a guilty verdict on the basis of the statement. Therefore, if the statement is indeed admissible, I would exercise my “residual discretion”, or judicial right, not to admit the statement as evidence. IV.

CONCLUSION [ 31 ] The Crown has not shown that it would not be dangerous to admit this hearsay statement as evidence. The hearsay statement does not meet what the law says is the standard of “threshold admissibility”. If I admit this hearsay, it would take away from the right of the accused to defend himself properly, and to have a fair trial. The right to a fair trial is one of the corner stones of our democracy. Therefore, I deny the Crown’s application. The complainant’s hearsay statement may not be used in evidence. Dated at the City of Iqaluit this 5th day of December, 2016 ___________________ Justice P.

Bychok Nunavut Court of Justice