Her Majesty the Queen - v. -, 2013 SKPC 13

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 013 Date: January 17, 2013 Information: 37231953 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jonathan Kenneth Dombowsky, Long Nam Luu, Kenneth Jacob Tingle Appearing: Mike Segu For the Crown Morris Bodnar , Q.C., Ian Wagner For the Accused DECISION ON VOIR DIRE B.M. SINGER , J [ 1 ] This is a decision on a voir dire to determine the admissibility of three statements [P-4 on the preliminary inquiry] made by a witness, Neil Yakimchuk to undercover police officers.

The first statement was to Constable Bell at 21:30 hours on January 14, 2011. The second, also to Constable Bell, at 10:56 on January 16, 2011 and the third, to Sergeant Cole at 18:36 on January 16, 2011. [ 2 ] Mr. Yakimchuk had been implicated in a murder in Calgary and these three statements were made during a complicated Mr. Big sting operation in which undercover police officers posed as criminals. The undercover officers played that they were attempting to recruit Mr. Yakimchuk into their organization and they encouraged him to reveal his criminal past so that they could “take care of it” so

as to not bring attention to their organization. [3] At the time of giving these statements Mr. Yakimchuk had already demonstrated to the “criminal organization” that he wasprepared to cheat, lie, defraud, threaten and use violence. Following a STIM - a public allegation printed in the Calgary Sun thatYakimchuk was the prime suspect in the Calgary murder - he was encouraged to tell Mr. Big, the alleged head of the criminals, about hisinvolvement in a Calgary murder so that the organization could take care of the evidence. The criminal group had already demonstratedto Mr.

Yakimchuk that they were prepared to kill a witness who had threatened one of their organizations. In this context Mr.Yakimchuk admitted aspects of that Calgary murder and also volunteered information about the Saskatoon murder of Isho Hana, thesubject of this preliminary inquiry. [4] At the preliminary inquiry Mr. Yakimchuk was presented as a witness by the Crown. He gave evidence recanting theprevious statements given to the undercover police officers. While testifying Mr. Yakimchuk explained why he lied to the undercoverpolice officers and went on to implicate Mr.

Tingle, one of the accused, in the murder in Saskatoon, while exonerating Jonathan KennethDombowsky and Long Nam Luu. Specifically he did not adopt his previous statements. After a successful application by the Crown tohave him declared adverse; he was cross-examined on the previous inconsistent statements by the Crown and the Defence and insistedthey were untrue and that he had lied to the undercover officers. [5] The issue for me to determine is if these statements are admissible in evidence at this preliminary inquiry. [6] The statements are hearsay and hearsay evidence is presumptively inadmissible.

It can however, be admitted for the truth ofits contents if it meets the twin requirements of necessity and reliability. This approach has been the state of the law since 1990. R. v.Khan (1990), (SCC), 2 S.C.R. 531. [7] Necessity has been admitted. The witness on the stand has recanted his previous statement. The Court must determinewhether the Crown has proven on the balance of probabilities there is sufficient indicia of reliability to allow the evidence to be weighedby the trier of fact. This has been referred to in the case law as threshold reliability. [8] Originally the approach developed in Khan and R. v.

Smith (1992), (SCC), 2 S.C.R. 915, is that thresholdreliability is met where there is little concern about the truth of the statements because of the circumstances in which they were given. Since the rule developed it became clear that the circumstances around the making of the statements in combination with othercorroborative evidence must be considered by the Court, especially in cases where a witness has recanted all or part of his previousstatements.

See: R. v. (G.B.)K. (1993), (SCC), 1 S.C.R. 740. [9] The case law makes it clear that there are many good reasons for not allowing hearsay evidence to go before the trier offact. These include difficulty of checking accuracy of the statements and in testing the credibility of the person uttering the statements.

If those dangers are alleviated then there is no principled reason to exclude hearsay evidence. [10] Where a witness recants his previous evidence, that evidence, if it replicates as much as possible the giving of evidence incourt, may be admitted in evidence, as it would meet the requirement of threshold reliability. There are no hard and fast rules however.

In each case, in order to determine whether there is sufficient evidence of threshold reliability, the Court must examine the circumstancesto see if those traditional dangers of allowing hearsay evidence are met. [11] This Court therefore must identify the specific hearsay dangers raised by the statement and determine whether the factssurrounding the making of that statement offers circumstantial guarantees of trustworthiness to compensate for those dangers. [12] The Crown relied upon the circumstances of the making of the statement and the corroboration in other evidence that supportthe idea that the utterances in this statement were true.

[ 13 ] The danger of hearsay evidence is that its accuracy cannot be tested by the trier of fact. That danger is lessened where the previous statement is recorded, as it was here. As well, the evidence can be tested for credibility for two reasons; it was videotaped so that the trier of fact can watch for visual clues of truthfulness, and more importantly, the witness is available for cross-examination, so the trier of fact can weigh not only the truth of his evidence but also the reasons for the witness’s prior inconsistent statement. [ 14 ] The Crown suggested that, specifically because this was a Mr.

Big scenario, one can believe that the accused had no motive to lie. In that scenario emphasis was placed upon honesty and the idea that no harm comes to those who let down the organization were emphasized. The Crown also suggested that the statement to Mr. Big was a solemn occasion where the witness was made to believe that this was his opportunity to make a complete disclosure if he wanted evidence in the murders to be “cleared up” which was an essential step in him joining the criminal organization. [ 15 ] It should be noted that the witness did not seem all that concerned about “clearing up” the evidence.

He had to be talked into this with the threat from Constable Bell that Bell, in the persona as a fellow member of the criminal organization, was at risk for even buying his airline ticket or even knowing him and that unless steps were taken he could not be a member of the organization. [ 16 ] The witness, did not express a great interest in having his previous crimes “cleared up” except to the extent that he thought that he had to tell Mr. Big all about it. It may be that he was exaggerating his “badness” and his criminal connections rather than seeking help in having past charges dealt with.

However, whatever his motive, it doesn’t really go to reliability, but to credibility. The only way that the Mr. Big operation or the police trick that got him talking could have some effect on reliability was if it induced him to lie by giving him a “serious motive to lie”. The motive to lie was, as he testified on the stand, that he was afraid for his life and thought that it was important that he bolster his criminality to become a member of this organization.

It was also suggested that he could get in favour with the criminal organization that was already paying him a salary and offered him a future job if he exaggerated his criminal intentions and criminal antecedents. [ 17 ] However, motive to lie would only be a big factor in assessing the reliability of the statement if the accused were not available to be cross-examined. Because we were only talking about threshold reliability, the fact that he is available to be cross-examined, allows the trier of fact to determine what to believe. It therefore significantly reduces that particular hearsay danger.

Much of what he told the undercover operators is confirmed by other admissible evidence led on the voir dire . While there are some matters that are not confirmed and some of these deal with the role of Dombowsky and Luu in the murder, it is important to review what the Supreme Court said in R. v. Khelahon (2006), S.C.C. 57, at para. 92, when considering corroborating evidence. In Khelahon the Court indicated that the reliability requirement is met if the accused is available to be cross-examined, as the trier of fact then has a basis for assessing the truthfulness of the statements and their accuracy.

There is no need, therefore, for the trial judge when determining admissibility, to inquire further as to the likely truth of the statement. Dangers of hearsay in the matter before me are met because the statements are videotaped and the witness is available to be cross-examined.

As the hearsay dangers disappear, the issue becomes one of credibility, not one of reliability and is one for the trier of fact, not the gatekeeper of that evidence. [ 18 ] To put this as simply as possible, the biggest dangers of hearsay evidence in the case of a recanting witness are accuracy of the previous statement and the ability to test credibility of that statement. In this case, accuracy can be determined easily as the statement is recorded.

Credibility can be tested because the statement is videotaped and the body language and intonation of the witness can be ascertained and more importantly the witness is available not only to be cross-examined but also to explain why the trier of fact should not believe his prior statement. [ 19 ] Therefore I have concluded in this case that the statements made by the witness to the undercover operators are admissible hearsay as the twin tests of necessity and threshold reliability have been met. ____________________ B.M. Singer, J