R. v. Mittelsteadt, 2023 BCPC 24

Citation: R. v. Mittelsteadt 2023 BCPC 24 Date: 20230110 File No: 183526-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. EDWARD PAUL MITTELSTEADT ORAL RULING ON VOIR DIRE OF THE HONOURABLE JUDGE L. MROZINSKI Counsel for the Crown: P. Campbell Counsel for the Accused: R. Hira Place of Hearing: Victoria , B.C. Dates of Hearing: January 9 and 10, 2023 Date of Judgment: January 10, 2023

[ 1 ] THE COURT: This is an application by the Crown for a ruling on the admissibility of parts of a recorded statement given to police on November 20, 2020 by Mr. Jesse Carlson, the alleged victim in this case. [ 2 ] In this case, the Crown charges that on or about July 12, 2020, Mr. Mittelsteadt, then a member of the North Saanich RCMP, assaulted Mr. Carlson after Mr. Carlson spat on him while the two waited for Mr. Carlson to be seen by a doctor in the emergency room at the Saanich Peninsula Hospital. Mr.

Carlson was in police custody at the time. [ 3 ] In November, 2020 Corporal Dovell of the Westshore RCMP was tasked with investigating this alleged assault. Corporal Dovell testified to recording what he believes is a statement given to him by Mr. Carlson regarding events at the hospital. The recording is not entirely clear, but it has been transcribed and I find there is little issue, at least with those parts of the transcript the Crown seeks to admit into evidence in the trial. It is, of course, the case that many parts of the interview are indecipherable, as the transcription indicates.

This is due, it seems, to Mr. Carlson's apparently being under the influence of methadone at a minimum. [ 4 ] This last November 2022, Mr. Carlson passed away. In the result, the Crown makes this application to admit portions of his statement to Corporal Dovell as evidence in this trial. [ 5 ] The application is opposed by Mr. Mittelsteadt. He submits the Crown has firstly not proven that the recorded statement was, in fact, made by Mr. Carlson. There is, or at least it was submitted, a question whether the Crown has properly proven Mr. Carlson's death. Most importantly, Mr.

Mittelsteadt submits the statement ought not to go in on the grounds that it does not meet the test for either procedural or threshold reliability. [ 6 ] At the commencement of this voir dire , the Crown tendered a death certificate purporting to certify that Mr. Jesse Carlson had, in fact, deceased. Counsel for Mr.

Mittelsteadt objected to its admissibility, though not strenuously, on the grounds that either it did not comply with s. 24 of the Canada Evidence Act , or the Crown had failed to comply with s. 28(1) and (2) of the Act by failing to give counsel seven days or reasonable notice, at least, of the death certificate. It was, as I stated, not a strong objection and I accept the death certificate as proof of the death of Mr. Carlson, notwithstanding the lack of notice. I am satisfied the certificate meets the criteria for admission under s. 24 of the Canada Evidence Act.

Moreover, counsel did not seek or want an adjournment of this trial in order to deal with the question of notice. [ 7 ] The statement given by the person police, at least, believed was Mr. Carlson is, of course, hearsay. In the normal course, Mr. Carlson would be required to testify in person. His statement would not be admissible.

It might, perhaps, be put to him in cross- examination but not admitted into evidence and certainly not as part of the Crown's case, except in an exceptional circumstance. [ 8 ] As all agree, there are exceptions to the hearsay rule, the applicable exception here being that the admission of the hearsay statement is arguably both necessary and meets the threshold test for reliability. Here, because of Mr.

Carlson's untimely death (he was still a young man under age 40 this last November), the Crown submits, and I agree, that the introduction of his statement certainly meets the test of necessity for the purposes of this exception to the hearsay rule. [ 9 ] The Crown submits Mr. Carlson's statement, or those parts of it seeks to have admitted, are also necessary for its case. That may be, but in any event, I am satisfied the requirement of necessity has been made out in this case as a result of Mr.

Carlson having passed away before trial. [ 10 ] The only question, apart from whether this court can be satisfied this was a statement given by Mr. Carlson, is whether the statement is sufficiently reliable to justify its admission into evidence. [ 11 ] In terms of whether it was Mr. Carlson who made the statement, I find based on the context of the statement, as well as the testimony of Corporal Dovell, that it must have been him. Having said so, I do not disagree that more could have been done by police to determine whether it was Mr.

Carlson on the other end of the phone, but of course, no one was contemplating the statement would be used for this purpose. [ 12 ] While evidence was tendered respecting the steps police took to try to locate Mr. Carlson, ultimately the evidence is that Corporal Dovell believed he got a message to Mr. Carlson to call him, and that Mr. Carlson then did call him from a homeless shelter, as he said, in the early afternoon of November 20, 2020.

It is clear from the transcripts and Corporal Dovell's testimony that once the person identifying himself as Jesse Carlson called, Corporal Dovell obtained the necessary recording device and recorded the interview over the phone. [ 13 ] As Constable Dovell testified it was, in his mind, a simple interview and not one in which he did or would have sought to warn Mr. Carlson to tell the truth or, frankly, an instance in which he would have done anything to prod Mr. Carlson to be truthful. [ 14 ] Again, as the transcript clearly evidences, and as Mr.

Mittelsteadt submits, the statement was taken some months after the event. It was also done with little in the way of probing. There is no meaningful effort, for example, to probe the trustworthiness of Mr. Carlson's statement, aside from Corporal Dovell once asking whether Mr. Mittelsteadt might have threatened to use a taser on Mr. Carlson rather than shoot him, as Mr. Carlson alleged several times, and in some detail. Oddly, at the outset Corporal Dovell even tells Mr. Carlson that it was Mr.

Mittelsteadt - then Corporal Mittelsteadt - that brought him to the hospital that day. [ 15 ] Aside from these issues, there is the question of Mr. Carlson's state of mind during the interview. The person giving the statement to police is a male, clearly in some distress and, as the evidence indicates, very likely under the influence of methadone or some drug. While these facts are relevant to the question of reliability, which I will address shortly, they also tend to be consistent with that person being Mr.

Carlson. [ 16 ] In addition, though not in good mental shape, that person was able to describe events as he recalled them having taken place at the Saanich Peninsula Hospital, which of course was in line with some of the evidence called in this voir dire . The person giving the

statement gives no indication of being unfamiliar with events, alleged or otherwise, the answers to questions by Corporal Dovell comequickly with some ease, though they are also often difficult to understand. [17] As far as identity is concerned, I find it highly unlikely that someone other than Mr. Carlson was speaking to Corporal Dovellthat day. I accept this is a statement given by Mr. Carlson. [18] This then leaves the question of reliability. The parties each rely on the ruling of the Supreme Court of Canada in R. v.

Bradshaw,2017 SCC 35 as the leading authority governing the admission, or not, of the statement in this case. In addition, counsel relies on: R. v.Adams, 2022 BCPC 78, R. v. U.(F.J.), 1995 482 CR (4th) 133, R. v. Hall, 2018 NBCA 122, and R. v. Khelawon, 2006 SCC 57 ,2006 2 SCR 787. [19] At issue in Bradshaw, as the court writes at paragraph 18, is when a trial judge can rely on corroborative evidence to concludethat the threshold reliability of a hearsay statement is established. As the court notes at paragraph 26 of Bradshaw: . . .

Threshold reliability is established when the hearsay “is sufficiently reliable to overcome the dangers arising from the difficulty oftesting it” . . .

At paragraph 27 the court writes: The hearsay dangers can be overcome and threshold reliability can be established by showing that (1) there are adequate substitutes fortesting [the] truth and accuracy (procedural reliability) or (2) there are sufficient circumstantial or [other] evidentiary guarantees that thestatement is inherently trustworthy (substantive reliability) . . . [20] With respect to procedural reliability, Crown submits that there are some procedural safeguards in place in that Mr. Carlson'sstatement is recorded as well as having been transcribed for ease of reference.

The recording does enable the court to assess Mr.Carlson's demeanour, certainly at least with respect to things apparent to the senses such as the slurring or difficulty speaking, the pace ofhis speech and the timing of his responses, as I have discussed above. [21] It is the case, as the court in Adams notes at paragraph 84, citing R. v. Wood, 2022 ONCA 87 at paragraph 72, that proceduralreliability is meant to be slightly more robust.

As the court in Wood writes: To establish procedural reliability, the proponent must adduce evidence that adequate substitutes exist for testing the hearsay evidencesince the declarant has not testified in court, under oath or its equivalent, and under the scrutiny of contemporaneous cross-examination.These surrogates must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsaystatement.

Typical substitutes for the usual safeguards include a video recording of the statement, the presence of an oath or itsequivalent, and a warning about the consequences of lying. But some form of cross-examination is ordinarily required. . . [22] Mr. Mittelsteadt submits that procedural reliability takes on a fundamental importance in this case as Mr. Carlson, an individualin custody at the material time on breach allegations, had a not insubstantial criminal record. He was, Mr. Mittelsteadt submits, aVetrovec witness, similar to the alleged victim in Adams, the deceased Mr. Faraj. Given Mr.

Carlson's background, it is submitted asimple statement taken by Corporal Dovell does not provide any procedural safeguards against unreliability. [23] Unquestionably, there are few if any meaningful procedural safeguards in place to guard against what I accept are valid concernsabout Mr. Carlson's sincerity or truthfulness. For the most part, in any event, the Crown submits this court can be satisfied the statementby Mr. Carlson, or those parts it seeks to have admitted into evidence, is substantively reliable because it is corroborated by thetestimony of Ms.

Emily Dent, a registered nurse working in the Emergency Department of the Saanich Peninsula Hospital at the materialtime. [24] Again, the court in Wood provides a useful discussion of the evidentiary concept of substantive reliability. At paragraph 74 itwrites: Substantive reliability, the functional equivalent of Dean Wigmore’s “circumstantial guarantee of trustworthiness”, sets a higher standardfor the hearsay proponent to meet. The judge or court must be satisfied that the statement is so reliable that contemporaneous cross-examination of the declarant would add little, if anything, to the process.

To determine whether the statement is inherently trustworthy,the trial judge or court can consider the circumstances in which the statement was made, as well as any evidence that corroborates orconflicts with it . . .

Substantive reliability is established where the statement is so reliable that it is unlikely to change under cross-examination . . . [25] That is echoed, in part, at paragraph 31 of Bradshaw, where the court also writes that while the circumstantial guarantee oftrustworthiness is high, but not one that needs to be established with absolute certainty, at a minimum: . . . the trial judge must be satisfied that the statement is “so reliable that contemporaneous cross-examination of the declarant would addlittle if anything to the process. (R. v.

Khelawon, (2006) 2006 SCC 57 , 2 S.C.R. 787, at para 49.) [26] At paragraph 57 of Bradshaw, the court sets out the basis on which a court must determine whether corroborative evidence is ofassistance.

There, the court writes that the trial judge must: 1. identify the material aspects of the hearsay statement that are tendered for their truth; 2. identify the specific hearsay dangers raised by those aspects of the statement in the particular circumstances of the case; 3. based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement; and [finally] 4. determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternative

explanations such that the only remaining likely explanation for the statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement. [ 27 ] Utilizing the transcript of Mr. Carlson's statement entered as Exhibit C in this voir dire , the Crown had highlighted in yellow those portions of the statement it submits should be entered into evidence in the trial. [ 28 ] In closing submissions Crown proposed a slightly edited version, which includes the description of the alleged assault by Mr. Carlson, along with some additional parts of the statement, for context.

The Crown seeks to admit the following parts of the statement. [ 29 ] Firstly on page 1, beginning with a question by Corporal Dovell: Uh just identify yourself please there Jesse if you could and just your current location. Answer: My name’s Jesse CARLSON, I’m 35 years, old . . . [ 30 ] On page 2, Corporal Dovell: So Jesse um . . . when you arrived at the hospital um the officer that had arrested you or had brought you to the hospital. My understanding is his name is Constable MITTELSTEADT? [ 31 ] Indecipherable on the part of Mr. Carlson. Again, the question: Do you remember his name? Mr. Carlson: Yeah.

Corporal Dovell: Okay and why don’t you just uh tell me your interaction with Constable MITTELSTEADT and what he had said to you and then uh what happened at the hospital? Mr. Carlson: He said, I didn’t even want to say anything (indecipherable) he’s just telling me to chill. And I spat on him and then he started repeatedly short jabs hitting in the side of my face and then he scratched the side of my face, side of the neck and then I got my handcuffs on. [ 32 ] Page 3, Corporal Dovell: So you said uh the officer had jabbed you, what would you mean by jabbed? Just tell me how he hit- [Mr.

Carlson] Like a short punch. Like a, we’ll just call it a punch. Okay so . . . uh it was a closed fisted or or open handed? [Mr. Carlson] It was close closed. Closed. [Corporal Dovell] Okay. And how many times did he uh punch you? [Mr. Carlson] Like six or seven. [ 33 ] Then finally on page 4, Corporal Dovell: And so Jesse um you said that you, the cut was caused when your face was on the . . . floor of the- [Mr. Carlson] Yeah- [Corporal Dovell] -hospital. [Mr.

Carlson] -he started rub- he started rubbing his (indecipherable) back and forth on my skull and it’s rubbing it on the floor and it started splitting open. [ 34 ] In the whole of the statement made by Mr. Carlson to Corporal Dovell it is clear, though not necessarily because of what was said rather than how it was said, that Mr. Carlson was labouring under the influence of something. Corporal Dovell agreed; he thought Mr. Carlson was under the influence of methadone given his known drug use and recent stay in hospital. [ 35 ] That may well be the case. Certainly Mr.

Carlson is difficult to understand, his words are often slurred or indecipherable. Still, he can be heard giving a version of not only the alleged assault but many other things, including that Mr. Mittelsteadt threatened to kill him, to take him out on a ride and shoot him. Mr. Carlson states that Mr. Mittelsteadt scratched the side of his face and neck, that his face, eyebrow and chin were cut, that the cut on his cheek was severe enough to leave blood on the floor and that it took a long time to heal, and of course, that using a closed fist Mr. Mittelsteadt punched him some five to seven times. [ 36 ] Mr.

Carlson does admit to spitting on Mr. Mittelsteadt but his initial description leaves out considerable detail regarding his behaviour leading up to this beating, as described by several of the witnesses in this voir dire . [ 37 ] In my view, on its face, the statement appears to contain a great deal of exaggeration if not outright falsehoods. In terms of identifying specific hearsay dangers, the danger here is that Mr. Carlson was either exaggerating matters and/or quite likely lying about

certain aspects of his interaction with Mr. Mittelsteadt. [ 38 ] Overall, the danger is that Mr. Carlson, a person then with a long criminal record, might not have been honest with police. Certainly (and I agree with Corporal Dovell that this was not strictly necessary) but certainly there is no sense that Mr. Carlson felt any obligation to be honest, there was no warning that he should try to or be honest, and there is no guarantee by Mr. Carlson that this is, in fact, what he was doing. There is also, given Mr.

Carlson's physical state, both in July of 2020 and again in November 2020, the question of the accuracy of his recollection. [ 39 ] Still, the Crown submits that the portions of Mr. Carlson's statement it seeks to have admitted as evidence in the trial is corroborated to such a degree by Ms. Dent's testimony, that this court could be satisfied of the substantive reliability of at least those parts of the statement. Crown submits that Ms. Dent's evidence that she saw what she perceived to be Mr. Mittelsteadt appear to strike Mr.

Carlson several times before yarding him onto the ground, as she described it, is so strikingly similar to Mr. Carlson's statement it has the effect of corroborating it, at least on the threshold level so as to enable the statement to meet the test for reliability at this juncture. [ 40 ] I do not disagree that there is something fundamentally similar between what Ms. Dent testified to seeing – which she thought was Mr. Mittelsteadt striking Mr. Carlson several times in the upper body area - and Mr. Carlson's statement that Mr. Mittelsteadt struck him several times with a closed fist.

But there is, it seems to me, a vast difference between a witness thinking they saw another person being struck and a witness testifying that they were, in fact, struck and in the manner described. [ 41 ] The Crown does not seek to introduce the whole of Mr. Carlson's statement, but the whole of his statement would indicate, on its face at least, particularly given all of the evidence before me in this voir dire , that he exaggerated and was likely, frankly, untruthful in many parts of the statement. Why, then, or how, then, can this court accept on this evidence that despite that, Mr.

Carlson must have been truthful when he testified he was struck by Mr. Mittelsteadt five to seven times with a closed fist? [ 42 ] Ms. Dent's evidence cannot corroborate that to the point that no further cross-examination would seem to be necessary or potentially useful. Ultimately, Ms. Dent testified to seeing Mr. Mittelsteadt from behind. She recalls seeing his shoulder rotate some 20 degrees each way, moving back and forth some five or six times. From her description, it does not appear that she saw Mr. Mittelsteadt's hands at any point. Ms. Dent does not even describe Mr.

Mittelsteadt's elbows moving, just his shoulders. [ 43 ] It may be that Ms. Dent saw Mr. Mittelsteadt punching Mr. Carlson, but it is not inconceivable that she saw him struggling with Mr. Carlson in an effort to take Mr. Carlson to the ground, which he ultimately succeeded in doing. [ 44 ] In my view, Ms. Dent's testimony does not establish that the only likely explanation for the hearsay evidence the Crown seeks to have admitted at the trial in this case is that Mr. Carlson was telling the truth in that portion of his statement, that he was in fact struck by Mr.

Mittelsteadt some five to seven times with a closed fist. [ 45 ] As the court writes at paragraph 45 of Bradshaw : The function of corroborative evidence at the threshold reliability stage is to mitigate the need for cross-examination, not generally, but on the point . . . the hearsay is tendered to prove. [ 46 ] Given the little that is available in this case by way of procedural reliability, coupled with what I find are obvious concerns regarding Mr. Carlson's sincerity or truthfulness in his statement to police, I am not satisfied that it would be safe to admit that portion of Mr.

Carlson's statement to the effect that he was punched by Mr. Mittelsteadt with a closed fist some five to seven times. [ 47 ] With respect to the remainder of the portions the Crown seeks to admit, I agree firstly that the evidence called on this voir dire establishes clearly that Mr. Carlson spit on Mr. Mittelsteadt, and that Mr. Carlson's cheek was cut when he was forced onto the ground by Mr. Mittelsteadt. [ 48 ] As the parties have agreed, this evidence, that is to say the testimony of Ms.

Dent in its entirety, complete with exhibits entered through her, and the testimony of Constable Edwards, also in its entirety complete with exhibits entered through him, will go in as evidence in the trial. [ 49 ] I see no need or necessity to admit any portion of Mr. Carlson's statement for this purpose. For these reasons, I would deny the Crown's application to admit portions of Mr. Carlson's statement in as evidence in the trial of this matter. [ 50 ] For ease of reference, I do order that the evidence of Emily Dent and Corporal Edwards becomes evidence in the trial.

I also order that Exhibits D through J also become exhibits in the trial and we will number then accordingly. Exhibit D is the criminal record of Mr. Carlson. It was not admitted through either Ms. Dent or Constable Edwards, but it will go in as evidence in the trial. (JUDGMENT CONCLUDED)