R. v. Pissuk, 2016 NUCJ 26

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Pissuk, 2016 NUCJ 26 Date: 20160914 Docket: 18-15-209 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused Jonathon Pissuk ________________________________________________________________________ Before: The Honourable Madam Justice Cooper Counsel (Crown): Benjamin Flight Counsel (Accused): Sara Seibert Location Heard: Rankin Inlet, Nunavut Date Heard: September 13-14, 2016 Matters: Criminal Code of Canada , RSC 1985, c C-46, s 266; Breach of conditional sentence order hearing REASONS FOR JUDGMENT (Delivered Orally) (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] Mr. Pissuk is before the court for a hearing on an allegation of breach of a Conditional Sentence Order [CSO]. [ 2 ] Mr. Pissuk was placed on a CSO for 4 months. While still subject to the CSO, he was charged with sexual assault. It is the sexual assault allegation that forms the basis of the allegation that he breached his CSO. [ 3 ] The court has before it two files: the Information charging Mr. Pissuk with sexual assault and the application for a hearing for a breach of the CSO.

The application for the breach hearing is supported by the following documents: • An allegation of a breach signed by the supervisor; • A report signed by the supervisor in which she states that she reviewed the Prosecutors Information Sheet [PIS], and the complainant’s audio statement in relation to the sexual assault allegations; • A copy of the conditional sentence order; • A copy of the Prosecutors Information Sheet ; and • An acknowledgement of the conditional sentence order signed by the offender. [ 4 ] As indicated, the complainant in the sexual assault matter did provide an audio/video statement to the police.

A DVD of that statement has been provided to Defence Counsel as part of the Stinchcombe [1] disclosure in relation to the Information charging the accused with sexual assault. The statement has not been reduced to writing. [ 5 ] The Criminal Code of Canada , RSC 1985, c C-46 [Criminal Code], provides : s. 742.6(4) An allegation of a breach of condition must be supported by a written report of the superviso r , which report must include, where appropriate, signed statements of witnesses.

(5) The report is admissible in evidence if the party intending to to produce it has, before the hearing, given the offender reasonable notice and a copy of the report. …

(8) The offender may, with leave of the court, require the attendance, for cross-examination, of the supervisor or of any witness whose signed statement is included in the report. II. ISSUES [ 6 ] The issues are: • What is the nature of the materials that must be filed in support of a breach allegation?

• Is the Crown precluded from proving a breach in any way other than by filing a report and signed witness statements, such as by calling viva voce evidence? • Is the filing of a report in the proper form, with signed witness statements if necessary, required for the court to exercise jurisdiction? III. POSITIONS OF THE PARTIES [ 7 ] The Crown submits that the written

summary of the complainant's statement as contained in the PIS satisfies the disclosure and documentation requirements of s. 742.6(4) of the Criminal Code . [ 8 ] Crown submits that the contents of the complainant's audio statement is a “non-contentious” matter and, if Defence Counsel has concerns regarding the accuracy of the

summary in the PIS, then Defence counsel can seek leave to cross-examine the police officer. [ 9 ] The Crown submits that R v McIvor, 2008 SCC 11 , 229 CCC (3d) 1 [McIvor] is distinguishable on its facts. The Crown submits that in McIvor , the police were not in possession of statements from the witnesses so the Defence did not have any disclosure of evidence based on personal knowledge.

The Crown submits that, in this matter, Defence has the complainant's statement as disclosure in relation to the Information laid in relation to the sexual assault. [ 10 ] Defence submits that the documentation before the court on the breach allegation is insufficient because the report submitted by the supervisor is not based on firsthand knowledge and no signed witness statements are provided. [ 11 ] Defence submits that hearsay evidence is presumptively inadmissible and, as such, it does not comply with the requirement that the evidence submitted in documentary form must be evidence that would be admissible if the declarant or author were to give viva voce evidence. [ 12 ] Defence further submits that the audio/video statement of the complainant, even if it were before the court, is not a “signed statement” as required by the legislation.

Defence submits that the requirement for a signed statement, where appropriate, is mandatory and is a prerequisite to the court being able to hear the matter. IV. ANALYSIS A.

What is the nature of the materials that must be filed in support of a breach allegation? [ 13 ] The question as to the nature of the evidence that must be provided to the court on a breach hearing was before the Supreme Court of Canada in McIvor . [ 14 ] In McIvor , the offender had been placed on a CSO with conditions that she not be in the company of her co-accused, that she obey a curfew, that she not possess documentation in any name other than her own, and that she keep the peace and be of good behaviour. [ 15 ] When police responded to a motor vehicle accident they found the offender to be in the presence of her co-accused, outside past curfew, and in possession of documentation in a name other than her own. [ 16 ] At the breach hearing, the Crown relied upon a report filed by the supervisor which stated that the offender had not been given permission to be out past curfew, and a police report summarizing the information obtained from several witnesses concerning the circumstances surrounding the motor vehicle collision.

No signed statements from any of these witnesses were put before the court. Neither the supervisor nor the police officer had personal knowledge of the circumstances regarding the breaches.

[ 17 ] The court found that Parliament intended a simplified, expedited process for breach hearings. This was to be achieved through four provisions: • documentary proof of the breach is permitted; • leave is required for cross-examination; • the burden of proof is on the offender to establish any reasonable excuse for non-compliance; • the standard of proof is on the standard of probabilities. [ 18 ] However, documentary evidence provided in support of a breach allegation had to be evidence that was admissible if the declarant were to testify in court. [ 19 ] The Crown’s

interpretation in this case is not supported by McIvor or by subsequent case law, all of which state that the documentary evidence must comply with the general law of evidence. The question to be asked is, “if this evidence were called viva voce, would it be admissible”? If it would not, then the fact that it is in documentary form does not make it so. [ 20 ] In R v Dutiaume , 2015 BCPC 59 CanLII, 120 WCB (2d) 384 , the alleged breach was a failure to report to a community corrections facility as directed.

In support of the breach allegation, the Crown filed a report by the supervisor which was based on a review of the facilities log books. Although the log book might have been admissible as a business record under the Canada Evidence Act , RSC 1985, c C-5, the Crown had not complied with those legislative provisions. Instead, the Crown argued that because the supervisor had read the log book, it was not hearsay.

The court rejected the argument, stating that “observation of hearsay evidence does not and cannot create direct evidence” (para 17). [ 21 ] This is precisely the argument the Crown is making in this matter. It is clear that if the police officer were to testify he would give evidence as to what the complainant of the sexual assault allegation told him. That is hearsay. It does not fall within any exception to the hearsay rule. It is inadmissible evidence. [ 22 ] If the supervisor has firsthand knowledge of the matters that constitute the breach then the supervisor’s report will be sufficient.

Reports and documents that are admissible under the general rules of evidence or pursuant to legislation, such as expert reports or business records, are admissible. Hearsay evidence is not admissible unless it falls within one of the exceptions to the hearsay rule. B.

Is the Crown precluded from proving a breach in any way other than filing a report and signed witness statements, such as by calling viva voce evidence? [ 23 ] During submissions on this matter, the issue arose as to whether the Crown could prove the breach by playing an audio tape of the complainant’s statement. [ 24 ] Defence Counsel took the position that the requirement in Criminal Code s. 742.6(4) for signed, written statements by witnesses was mandatory and was the only procedure available to the Crown to prove its case. [ 25 ] I do not agree with this submission. [ 26 ] The procedure set out in the Criminal Code for proceeding on an allegation of a breach of a conditional sentence is designed to

provide an efficient, expeditious hearing. The ability for the Crown to lead evidence in documentary form rather than in the usualmanner simply provides a short cut which the Crown may or may not choose to use. It is inconceivable that the law would preclude thecourt from hearing the best evidence available in favour of a potentially less reliable form of evidence. [27] In R v Cruz, [2001] OJ No 3756, 51 WCB (2d) 136 [Cruz], the offender was on a CSO when he was charged with new offencesand an application for a breach hearing was brought.

The offender was in custody on the new charges, having been detained after a bailhearing. The matter was fraught with procedural irregularities and delays, resulting in the hearing not commencing within 30 days asrequired by the legislation and the offender not being brought before the court until almost two months after the alleged breach. Theoffender was not served with the supervisor’s report until two days before the hearing, which was heard over two months after thealleged breach.

The hearing proceeded based on the supervisor’s report and viva voce evidence, both of which were hearsay evidence asthey related to the conduct that constituted a breach. Signed witness statements of those having direct knowledge of the breach were notprovided. The court held that the evidence before the court did not comply with the requirements of Criminal Code s. 742. [28] In R v Barnes, [2009] OJ No 2351, (ONSC) [Barnes], the breach allegation was one of possessing illegalnarcotics. The matter was first before the court on January 15, 2009. At that time there was very little filed with the court.

There was nosupervisor’s report or signed witness statements. Defence Counsel raised concerns regarding the lack of signed witness statements andthe lack of a Certificate of Analysis to prove the nature of the substance. The matter was adjourned to provide Crown Counsel with timeto address the deficiencies. The matter was next in court just over two months later. The Crown filed a supervisor’s report and aCertificate of Analysis just prior to the hearing. The report contained a brief hearsay statement alleging a breach and did not have written,signed statements attached.

The police officers who had firsthand knowledge of the breach were available for cross-examinationpurposes. However, the Crown did not seek to prove the breach by calling the officers to testify. [29] Accordingly, there was no admissible evidence before the court as to the breach and the matter was dismissed. [30] The cases of Cruz and Barnes are, on occasion, both cited for the proposition that the requirement for signed witness statements ismandatory and cannot be satisfied by the calling of viva voce evidence. In my view, the cases do not stand for such a proposition.

Inneither Cruz nor Barnes, was the court called upon to address the issue of whether it was open to the Crown to prove the breach by wayof viva voce evidence. Both cases were fraught with delays which brought some urgency to having the hearings proceed. There is noindication that requests for adjournments were made as to allow the Crown time to call viva voce direct evidence on the breaches.

Theissue simply was not before the court. [31] There are cases, however, where the issue has been before the court and the findings have been that it is open to the Crown toprove its case through viva voce evidence. [32] In R v Le, (MB PC), 68 WCB (2d) 196, the court had before it a report that had attached copies of policereports and officers’ reports and notes, but no signed statements from the witnesses. The materials did not comply with Criminal Code s.742.6(4).

The Defence opposed the Crown calling viva voce evidence, arguing that the filing of signed, written witness statements wasthe only mode of proof available to the Crown. This argument was rejected by the court. [33] In R v Balaj, 2010 BCSC 362, 252 CCC (3d) 560, the Crown filed a supervisor’s report, but did not file signed witness statementsas it intended to call the witnesses at the breach hearing to give viva voce evidence.

The court held that the Crown was not restricted toproving the allegations in documentary form and that the allegations could be proven through viva voce evidence. [34] This approach was adopted by the subsequent cases of R v Laporte (RD), 2011 MBCA 96 CanLII, 279 CCC (3d) 500 [Laporte];and R v Johal, 2016 BCCA 157 , 129 WCB (2d) 648 [Johal]. [35] In Johal, the court overturned the decision of a lower court dismissing a breach allegation on the basis that signed witnessstatements had not been provided.

The Court of Appeal, citing Laporte, found that “despite the absence of signed witness statements, theCrown, having disclosed the substance of its case, could have called the police officers to testify at the resumed hearing.” (para 11). [36] In the matter before me, there was discussion as to whether the Crown could prove its case by playing an audio recording of the

witness’ statement. An audio tape of a statement is better evidence than a transcribed copy of an audio statement as the audio captures nuances and tone. It lies somewhere between the “best evidence”, that being viva voce evidence, and the documentary form of evidence which Criminal Code s. 742.6(4) provides for. While there may be issues with respect to proving whose voice is on the audio recording, there are various options available to the Crown to address that concern. [ 37 ] I find that it is open to the Crown to prove the breach through the audio statement of the complainant. C.

Is the filing of a report in the proper form, with signed witness statements (if necessary), required for the court to have jurisdiction? [ 38 ] This issue is closely linked to the previous issue.

Having found that the Crown can prove a breach allegation by way of viva voce evidence or evidence in some form other than documentary form, it would be nonsensical to require the Crown to provide signed witness statements as a pre-requisite to the court exercising its jurisdiction. [ 39 ] The issue is one of fairness and whether the offender has notice of the allegations that must be met. [ 40 ] In Balaj , the Defence argued that the filing of signed witness statements is mandatory and is a pre-requisite for establishing the jurisdiction of the court to hear the breach allegation.

The offender had a supervisor’s report with unsigned statements from a police officer attached, which in turn made reference to information received from civilian witnesses. The court rejected the argument that signed witness statements were a pre-requisite to the court exercising jurisdiction. The court held that an offender must have reasonable notice of the evidence to be tendered at the breach hearing. [ 41 ] In Laporte , the Crown filed a supervisor’s report, but did not include signed witness statements, indicating to the court that it intended to call viva voce evidence at the hearing.

The offender had been provided with police reports and the signed witness statements. Prior to the date set for the hearing, the accused brought an application to dismiss the matter on the basis that the requirement for signed witness statements was mandatory and was a pre-requisite to the court exercising jurisdiction. The trial court granted the application and dismissed the matter. This was overturned on appeal. V.

CONCLUSION [ 42 ] In conclusion, to prove an allegation of a breach of a conditional sentence order, the Crown must put evidence before the court that conforms with the general rules of evidence, with the proviso that, in accordance with Criminal Code s. 742(4), such evidence may be in documentary form. [ 43 ] If the Crown intends to call viva voce evidence at a hearing or lead evidence in some other admissible form, signed witness statements need not be filed with the court for the court to have jurisdiction to proceed with the hearing.

However, the offender must have reasonable notice of the allegations against him. Such notice would normally consist of statements from the witnesses that the Crown intends to call. [ 44 ] Finally, the procedure which the Crown follows must be sensitive to both the purposes of the procedure set out in Criminal Code s. 742.6 and the particular circumstances of Nunavut. The purpose of Criminal Code s. 742.6 is to provide a procedure which ensures breach allegations can be heard in an expedited, timely fashion.

Reliance upon viva voce evidence may be contrary to this purpose in many cases. [ 45 ] Further, witness statements are usually recorded by an audio/video recorder, in real time. There are often technology issues in

playing these recordings, particularly on circuits to smaller communities. Reliance upon audio recordings of witness statements to prove breach allegations is likely to be a cumbersome and time consuming process and would generally not be the preferred manner of proceeding. Dated at the City of Iqaluit this 14th day of September, 2016 ___________________ Justice S. Cooper Nunavut Court of Justice