R. v. Field Date:, 2016 BCPC 459

Citation: R. v. Field Date: 20161017 2016 BCPC 459 File No: 208719-2C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. NATHAN ROBERT WAYNE FIELD RULING ON VOIR DIRE OF THE HONOURABLE JUDGE WOLF Counsel for the Crown: S. Hamade Counsel for the Defendant: M. Fingas Place of Hearing: Surrey , B.C. Date of Hearing: October 17, 2016 Date of Judgment: October 17, 2016

[ 1 ] THE COURT : These are the oral reasons on the voir dire in the R. v. Field matter on court file 208719-2C. [ 2 ] There are two hearsay statements which the Crown submits should be considered as admissible. It is my view that there is a presumption against the admissibility of hearsay evidence. [ 3 ] The first statement is a tape recording generated as a result of a 9-1-1 call to the police by Mr. Guiseppe Zecca. In that call, Mr. Zecca, describes events as he is chasing two individuals that he believes just robbed the Surrey Central Inn.

His description is detailed with comments about what the individuals are wearing and where they are running to. [ 4 ] The second statement is one provided to Cst. Abmiotka. In that statement, he also details similar events, that of him chasing the two males. [ 5 ] Obviously, the statements are hearsay. Sadly, since the time of the taking of the statements, Mr. Zecca has died. The court today must consider whether the statement should be admitted as an exception to the hearsay rule. Since Mr.

Zecca has died, the only way his statements can be entered into the trial proper is if, on the voir dire , the Crown has satisfied the court that the statements are sufficiently reliable. I must guard against the admission of hearsay evidence which is unnecessary or the reliability of which is neither readily apparent from the trustworthiness of its contents nor capable of being meaningfully tested by the trier of fact. [ 6 ] The Crown in this case proposes that the statement of Mr. Zecca be admissible for the truth of its contents. He contends that all the requirements for it to be admissible exists.

In other words, the manner in which the statement was taken and other circumstances of the statement allow me to conclude that it is sufficiently reliable is the essence of his submission. The Crown's submission is that the statements should be admitted and ultimately the court, at a later time, may consider how much weight, if any, those statements should be given. [ 7 ] The Crown relies on Khan and submits that, in our case, there is no motive to falsify the story, that the statement was natural and is provided without prompting and can be corroborated by real evidence.

Specifically, the caller describes where the suspect ran to and, at a later time, where evidence was located in that same area. [ 8 ] Mr. Fingas, on behalf of the defence, submits the statements are not reliable. He submits that the statements were not made under oath, the declarant is not available to be cross-examined and, as a result of the inability to cross-examine the witness, we have limited information available to properly consider the reliability of the statements. I find great merit in this submission.

While we can learn things about the declarant through other sources, I do not have that evidentiary luxury in this voir dire . I know nothing about Mr. Zecca. [ 9 ] Mr. Fingas argues that he was chasing a person in the dark without a good view. We do not know the relationship, if any, to the two people he was chasing, one of which is alleged to be Mr. Field. We do not know how long he was at the hotel or even if he was involved in the robbery. [ 10 ] R. v.

Khelawon , a 2006 Supreme Court case, poses certain considerations and both counsel relied on this case that is found at tab 1 of the defence book of authorities on the voir dire and trial. [ 11 ] Was Mr. Zecca competent to make a statement? There is no evidence to the contrary. Specifically, with respect to the statement taken by the officer, he did not note any signs of impairment by drug or alcohol. [ 12 ] Did he understand the consequences of making his statement? It is true the statement was made to a person in authority.

It is equally true that, but for the assumption, we do not know if he had anything to do with the robbery. [ 13 ] What were the consequences? On this topic, at the end of the transcript, it appears that he told the dispatcher that he was living with his wife but was on a no-contact condition. This does give me some concern that he may have believed he could have been charged for an offence. There is no reason to believe that he tailored his statement in the hopes that by cooperating, the police might overlook that possibility.

However, his openness to the 9-1-1 caller becomes a bit suspect when he's not able to answer the simple question, what is your address, and then asked again, what is your home address and then asked again, what is your address. It is obvious that he was reluctant to answer that question. Certainly, there does not appear to be any untoward actions by the police on this topic. Also an appropriate consideration in assessing the statements' reliability.

There is not anything to lead me to believe the police knew he was bound by conditions or that he was potentially breaching them or that they cared one way or the other. [ 14 ] I have been given Mr. Zecca's criminal record. It shows an unrelated record and I am told that he had a mischief and two breach of undertaking conditions outstanding at the time of his death. I did not make much of this record. I do not consider it helpful one way or the other when assessing the reliability of the 9-1-1 call or his statement to the police officer.

Nevertheless, I think this issue would have been properly covered if the defence had an opportunity to cross-examine him. [ 15 ] There are details over which streets the suspects were running up and down that are confusing. I am not able to look at the evidence and have an understanding of where the 'Funky Monkey' is and, as such, amongst other things, I am not able to found an understanding of the declarant's knowledge of the neighbourhood. How long has he been there? The hotel clerk might have been able to help me understand the nature of the relationship of Mr.

Zecca to the hotel but I do not believe that this was covered by examination or in cross-examination in any detail, let alone how long he had been in the neighbourhood. [ 16 ] While there does not appear to be any influence by the police officer, equally, there is no indication that he, being the declarant, understood the consequences of making a statement. As to the quality of the questions, there does not appear to be any overly leading questions. [ 17 ] With respect to the quality of the video, it is not great. Certainly, I cannot see the suspects' faces. It does appear, however, that,

to some degree, the witness, Mr. Zecca, says he could recognize one of the individuals. At one point, Mr. Zecca was asked by the police officer with respect to the one that was carrying the box, "If you saw him again would you be able to recognize him?" In response, Mr. Zecca said, "Absolutely. I almost think I know exactly", and at that point, the transcript of the recording shows the words "inaudible" with brackets around. What was he going to say?

The natural conclusion of that sentence, to me, is that he was going to say I almost think I know exactly who it was but of course that would be just a guess, or in legal terms, I would be speculating as to what I believed he was about to say or, in fact, what he did say. [ 18 ] If the witness knew or thought he knew who he was chasing, I would think how he knew him would be very relevant. This, of course, would be a very important area of cross-examination. His observations of the person he knew versus the description of the suspect all goes to the continuity of the identification.

This unknown factor also gives me some concern regarding a potential motive to fabricate. Let me be clear. I do not think there was anything in the evidence to show that there was any motive to fabricate but I think the possibility that he may have known the person that is alleged to be Mr.

Field is certainly something which would have been worthy of cross-examination. [ 19 ] Regarding corroboration by the other evidence as to some of the other details, I can look at the video and tell that a man walked up to the hotel with a scooter, had some words with the desk clerk, that the desk clerk nodded his head in the positive and that these actions are consistent with the statement of Mr.

Zecca but are they sufficiently consistent enough for me to consider all of his statement as being reliable in the circumstances and within the context of both of these statements? [ 20 ] The officer took the statement and admitted he could not say with 100 percent certainty that the person depicted on the video was the person that gave him the statement. Certainly, there were some small discrepancies regarding the officer's description of the person that gave the statement and the clothes worn by the person in the video. To be clear, I do not believe that being 100 percent positive is a requirement at all.

It is open for me to consider all the evidence of the video, the surrounding circumstances of the statement, as well as the evidence of the officer. [ 21 ] Ultimately, I simply need to be satisfied on the balance of probabilities that the statements are sufficiently reliable. With respect to my conclusions, it is agreed by counsel that the person who gave the statement has since died and, as a result, the necessity requirement has been met. However, there are many unknown factors. Did he, in fact, live at the Surrey Central Inn? If so, for how long? Did he know either of the individuals he was chasing?

Was he new to the neighbourhood or did he have a good grasp of the street names he was calling out on his phone? When he says things such as a white shirt, is he referring to a hoody or some other style of clothing? Did he lose sight of the individuals long enough for them to discard any of their clothing? For example, were the suspects dressed, as shown on the video, and then discarded items while he pursued them? [ 22 ] Considering the 9-1-1 call, I have little doubt that the witness was recounting the information as it happened to the best of his ability but what was his ability to recount it?

Was he under the influence of any drugs or alcohol? Could he see well enough to describe what the suspects were wearing? Was his haste such that it did not allow him to properly explain what was happening while it was happening? Which person was he really following? [ 23 ] I appreciate that it is open for me to admit the statements and consider the weight that they must be given at the conclusion of the trial. In that weighing of the evidence, I might find that the statements help me address issues of continuity and identification.

However, I believe there are factors that lead me to believe that his evidence is somewhat reliable but there is some doubt to me as to whether the evidence would be sufficiently reliable as admissible evidence. That doubt is substantial enough for me to find that the Crown has not proven, on the balance of probabilities, that the statements are sufficiently reliable as to be admissible in the trial proper. [ 24 ] I believe, in the circumstances, the doubt must be weighed in favour of the accused and I find that the evidence should not be admissible as a result of the evidence heard in the voir dire .

It will not be admissible in the trial proper. (RULING ON VOIR DIRE CONCLUDED)