R. v. T.H.D. Date:, 2017 BCPC 213

Citation: R. v. T.H.D. Date: 20170303 2017 BCPC 213 File No: 23571-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Youth REGINA v. T.H.D. REASONS FOR JUDGMENT OF HONOURABLE JUDGE GIARDINI Youth Matter - Restriction on Access, s. 118 & s. 110 YCJA Counsel for the Crown: B.K. Boland Counsel for the Defendant: I. Donaldson, Q.C. Place of Hearing: Vancouver , B.C. Date of Hearing: March 3, 2017 Date of Judgment March 3, 2017

INTRODUCTION [1] In May 2016, T.H.D. was charged with four counts of aggravated assault contrary to s. 268 of the Criminal Code. Two of thefour aggravated assaults involved stabbing a victim with a knife. He was also charged with one count of using a weapon, namely, aknife, in committing an assault contrary to s. 267(

a) of the Criminal Code. The alleged offences occurred on June 23, 2012. At thattime, T.H.D. was a young person within the meaning of the Youth Criminal Justice Act. The Crown proceeded on the charges byindictment. [2] The trial commenced on February 21, 2017. A voir dire was held to determine the admissibility of a statement made by C.L.,also known as L.T.L., to Detective Constable Paul Woodcock and Detective Constable Ryan Smith on November 17, 2015. The Crownapplies to admit C.L.'s statement for the truth of its contents as part of its case. It relies on the principled approach to hearsay set out inR. v.

B.(K.G.), (SCC), [1993] S.C.J. No. 22, which I will refer to as K.G.B., and R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787. BACKGROUND CIRCUMSTANCES Admissions [3] The offences in this case arose out of an incident at a karaoke bar. The parties admitted certain facts about the incident asfollows: (

a) On June 23, 2012, the Art Music Box Karaoke, which I will refer to as the Music Box, was located at 208, 1050 KingswayAvenue in Vancouver, British Columbia. (

b) At approximately 2:40 a.m. on June 23, 2012, an unknown female called 911 to report a stabbing at 1050 Kingsway Avenue inVancouver. (

c) At approximately 2:43 a.m. on June 23, 2012, the police arrived at 1050 Kingsway Avenue in Vancouver and foundapproximately 20 people out front of that address. (

d) When the police entered the Music Box, fresh blood was noted to be on the floor and walls of that establishment. (

e) On June 23, 2012, at approximately 2:30 a.m., Thanh Tung Nguyen, also known as Tony Nguyen, was involved in an altercationwith an unknown male at the Music Box. During the course of that altercation, Tony Nguyen sustained six stab wounds to his abdomenand thorax. Tony Nguyen provided a description of his assailant which I have not set out because it is not germane to the admissibilityissue on this voir dire. (

f) On June 23, 2012, at approximately 2:30 a.m., Manh Troung Nguyen attempted to break up an altercation between TonyNguyen and an unknown male. He sustained wounds to his upper torso. Manh Troung Nguyen did not provide a description of theunknown male. (

g) On June 23, 2012, at approximately 2:30 a.m., Wei Han Zhou was involved in an altercation with an unknown male at theMusic Box. He sustained a stab wound to his right shoulder. Mr. Zhou provided a description of his assailant which I have not set outbecause it is not germane to the admissibility issue on this voir dire. (

h) On June 23, 2012, at approximately 2:30 a.m., Justin Hui was involved in an altercation with an unknown male at the MusicBox. He sustained a stab wound to his mid-back and to his left bicep. Justin Hui is a paraplegic and was in a wheelchair at the time. Heprovided a description of his assailant which I have not set out because it is not germane to the admissibility issue on this voir dire. (

i) On June 23, 2012, at approximately 2:30 a.m., Tommy Mai was involved in an altercation with an unknown male at the MusicBox and sustained a stab wound to his left arm. He provided a description of his assailant which I have not set out because it is notgermane to the admissibility issue on this voir dire. EVIDENCE CALLED ON VOIR DIRE [4] The Crown called one witness on the voir dire; that was Detective Constable Paul Woodcock. He was not involved in theoriginal investigation of the incident at the Music Box in 2012.

However, while working on an unrelated investigation, as a result ofconversation he had with a woman named C., he became aware that T.H.D. could be a potential suspect. He later found out that C.'sname was L.T.L. and she went by the name C.L. His partner, Detective Constable Smith, called C.L. to arrange a meeting to speak to herabout the Music Box incident. [5] Detective Constable Woodcock and Detective Constable Smith went to C.L.'s home on [omitted for publication] in Vancouver,British Columbia, on November 17, 2015. They were in plainclothes and arrived in an unmarked police vehicle.

C.L. met them at thedoor and invited them into the living room. She was the only person present in the room. C.L. told them she went by the name C. Sheappeared to be about 30 years old at the time. She was pleasant and polite. [6] According to Detective Constable Woodcock, she spoke candidly and lucidly. She did not appear to be under the influence ofdrugs or alcohol. This occasion was the first time Detective Constable Woodcock had spoken to C.L. However, Detective ConstableSmith had spoken to her previously on the telephone to arrange the meeting.

That telephone call was made in the presence of DetectiveConstable Woodcock. [7] Detective Constable Woodcock said that prior to digitally recording the interview with C.L., he and his partner did not discuss

the events at the Music Box. Detective Constable Woodcock said that during the conversation with C.L., he did not make any threats, he did not make any deal in exchange for C.L. providing a statement, and he did not promise C.L. any benefit. [ 8 ] The digital recording of the statement began at approximately 12:54 p.m. on November 17, 2015, and ended at 1:57 p.m. The interview of C.L. was not videotaped. The statement given by C.L. was not taken under oath. Detective Constable Woodcock and Detective Constable Smith were present throughout.

The statement that was played in court was approximately 40 minutes long. [ 9 ] The transcript of the statement provided to the court had been redacted to remove certain parts of the interview because certain statements were considered to be inadmissible. It is not clear if the statement was redacted unilaterally by the Crown or if the redaction was made as a result of agreement between the Crown and defence. The redacted transcript was marked as Exhibit 3 on the voir dire . The DVD of the statement was not redacted as such.

Instead, the Crown simply fast-forwarded through the sections that were redacted on the transcript. That DVD was entered as Exhibit 4 on the voir dire . In the course of giving the statement to the officers, C.L. made a sketch which was entered as Exhibit 5 on the voir dire . [ 10 ] Next, I turn to the events after C.L. provided the statement. Detective Constable Woodcock said that after the interview on November 17, 2015, C.L. did not contact him regarding any new information about the Music Box incident.

His next involvement in the case was on September 25, 2016, when he and Detective Constable Smith sought out C.L. to serve her with a subpoena. They went to the same residence on [omitted for publication] in Vancouver where they had interviewed C.L. in November 2015. In cross-examination, he acknowledged the subpoena was issued on September 14, 2016. He also acknowledged the 2017 trial date was set in July 2016. [ 11 ] On that occasion, September 25, 2016, the door was opened by C.L.'s mother. He spoke to C.L.'s mother in English. She seemed conversant with the English language.

Detective Constable Woodcock asked if C.L. was home. Her mother told him C.L. was in bed. Detective Constable Woodcock asked C.L.'s mother if C.L. could meet with the officers. C.L.'s mother told him C.L. was sleeping and was tired. In the circumstances Detective Constable Woodcock "served" the subpoena on C.L.'s mother instead of on C.L. He explained the details contained in the subpoena and the instructions to attend at a meeting with Crown counsel in January 2017.

He also left a card with his contact information. [ 12 ] In cross-examination, Detective Constable Woodcock acknowledged he knew C.L. was in the house. She was asleep. He said C.L.'s mother refused to wake her. It was put to him it was not that C.L. could not be found because, in fact, he had found her. Detective Constable Woodcock agreed he had found C.L. [ 13 ] In January 2017, Detective Constable Woodcock was asked by the Crown to contact C.L. The Crown wanted to change the interview time.

Accordingly, on January 27, 2017, at 9:00 a.m., Detective Constable Woodcock went to the residence on [omitted for publication] where he been twice before and spoke with C.L.'s mother. He asked to speak to C.L. Her mother told Detective Constable Woodcock that C.L. was no longer at that address.

She had gone to Hong Kong for work and would not be back until March or April 2017. [ 14 ] In cross-examination, Detective Constable Woodcock acknowledged he had no further dealings with C.L. between September 25, 2016, when he gave the subpoena to C.L.'s mother and January 27, 2017, when he went to the home again, pursuant to a request from the prosecutor. Detective Constable Woodcock went to the house on [omitted for publication] in Vancouver on two other occasions. On February 9, 2017, he went to the same residence he had gone to before and spoke to a woman who identified herself as C.L.'s younger sister.

The sister told Detective Constable Woodcock that C.L. lived at that address, but was away. Detective Constable Woodcock returned to the [omitted for publication] residence again on February 23, 2017, the day before he testified. On that occasion, he spoke to C.L.'s mother. He asked C.L.'s mother where C.L. was. Her mother said she did not know where C.L. was and had no way of contacting her. [ 15 ] Detective Constable Woodcock testified that after September 2016, he tried to telephone C.L. at a telephone number she had provided.

However, all he got was an automated message which said that the line was no longer assigned. [ 16 ] Detective Constable Woodcock said there was some email contact between C.L. and Detective Constable Smith, who had emailed copies of that correspondence to him. He testified there was an exchange of emails between C.L. and Detective Constable Smith in July 2016 which canvassed dates when C.L. would not be available. In cross-examination about the contents of the emails, Detective Constable Woodcock agreed the correspondence was between C.L. and Detective Constable Smith.

He agreed C.L. provided a telephone number and some 2016 dates when she was not available. He agreed there was further contact with C.L. by email on July 15, 2016, regarding another witness for this trial. The next contact was by email on February 16, 2017, from Detective Constable Smith to C.L. and another email on February 21, 2017, also from Detective Constable Smith to C.L. [ 17 ] Detective Constable Woodcock acknowledged no other efforts were made by him or Detective Constable Smith to contact C.L., other than the efforts he testified about in court.

Detective Constable Woodcock said that before January 1, 2017, he did not receive any information from C.L. that she was not planning to attend court. He also received no information from her that she was unwilling to attend court. APPLICABLE LEGAL PRINCIPLES [ 18 ] In Khelawon , the Supreme Court of Canada reviewed the principled approach to hearsay evidence. In that case, Mr. Khelawon was charged with a number of offences including aggravated assault and assault causing bodily harm against five complainants.

None of the complainants were available to testify because, by the time the matter went to trial, four of the complainants had died of causes not related to the alleged assaults and the fifth complainant was no longer competent to testify. The central issue at trial was whether hearsay statements made by the complainants to various people were admissible. [ 19 ] At trial, a total of 10 statements were tendered, four of which were videotaped statements made to the police. The only matters before the Supreme Court of Canada concerned the statements of one of the complainants, Mr. Skupien.

The Crown sought to introduce three statements made by Mr. Skupien, one to an employee of the retirement home, another to the doctor who treated him for his injuries, and a third, a videotaped statement given to the police. At trial, the only statement given by Mr. Skupien that was admitted was the

videotaped statement made to the police. [ 20 ] The appeal before the Supreme Court of Canada turned on the admissibility of hearsay statements under the principled case-by- case exception to the hearsay rule based on necessity and reliability. In particular, the Supreme Court of Canada decision focused on what factors should be considered in determining whether a hearsay statement is sufficiently reliable to be admissible. In R. v.

Post , 2007 BCCA 123 , the British Columbia Court of Appeal summarized the principal conclusions from the Khelawon case as follows, at paragraph 47: The Court restates much of what is now well settled law: 1. A hearsay statement is an out-of-court statement adduced to prove the truth of its contents, in the absence of a contemporaneous opportunity to cross-examine the declarant. 2. Hearsay evidence is presumptively inadmissible. 3. It is inadmissible because generally it is not possible to test the reliability of a hearsay statement. 4.

A hearsay statement may be admitted for its truth if it is shown to be both necessary and reliable. 5. Its reliability must be sufficient to overcome the dangers arising from the difficulties of testing it. 6. The onus of establishing, on a balance of probability, both necessity and reliability is on the person who seeks to adduce the evidence. 7. The overarching principle is trial fairness which embraces not only the rights of the accused, but broader societal concerns including truth as the goal of the trial process. 8. There are two main ways of establishing reliability.

The first is that because of the circumstances in which the statement was made, there is no real concern about the statement's truth. This approach is embodied in traditional exceptions to the rule against hearsay such as dying declarations, spontaneous utterances, and statements against pecuniary interest. 9. The second way of establishing reliability is because the statement's truth and accuracy can be sufficiently tested. The optimal means of testing reliability is to have the declarant state the evidence in court, under oath, and subject to contemporaneous cross-examination.

In some cases where the optimal means are unavailable, it will still be possible to sufficiently test the truth and accuracy of the evidence because of the presence of adequate substitutes, including (

a) an oath or its equivalent; (

b) an opportunity to observe the statement being made (e.g. a video); and (

c) the opportunity to cross-examine the declarant on his or her earlier statement. 10. Trial fairness requires consideration of factors beyond necessity and reliability. Even if those two factors are met, the trial judge has a discretion to exclude hearsay evidence where its probative value is outweighed by its prejudicial effect. 11.

The trial judge must also be satisfied on a balance of probabilities that the statement was not the product of coercion of any form, whether involving threats, promises, excessively leading questions by the investigator or other person in a position of authority, or other forms of investigatory misconduct. 12. There is a distinction between threshold reliability (i.e. reliability sufficient to be admissible) which is a legal question for the judge; and ultimate reliability, which is a question for the trier of fact.

ANALYSIS [ 21 ] Having set out the relevant legal principles that apply in such cases, I now turn to my analysis of their applicability to the specific facts before me in the present case. Admissible testimony [ 22 ] As noted by the Crown in its submission, the first requirement in any application to admit an out-of-court statement revolves around the nature of the statement itself. An out-of-court statement cannot be considered for substantive admissibility unless the statement can be classified as admissible testimony.

In other words, third-hand hearsay or evidence which would have been excluded under s. 24(2) of the Charter is not admissible even if it were contained in a prior inconsistent statement. [ 23 ] The Crown submits that in the present case, the evidence it seeks to tender at trial relates to the observations C.L. made regarding what occurred at the Music Box on June 23, 2012. If C.L. attended at trial and testified, such observations would be properly admissible.

The Crown noted that certain portions of the statement made by C.L., which could be classified as inadmissible evidence, were edited from the statements provided to the court. [ 24 ] The defence argues it is difficult to ascertain what portions of C.L.'s statement might be admissible because, in the absence of cross-examination, it is unclear what she saw and what she was told.

In the circumstances of the present case, I am satisfied that if C.L. had been called as a witness at this trial and had testified, her testimony about what she observed at the Music Box, subject to appropriate defence objections, would have been admissible at this trial. [ 25 ] I now turn to the criteria of necessary and reliability. Necessity [ 26 ] As noted by the Crown, necessity refers to the need to use the out-of-court statement as evidence in place of viva voce testimony because there is some obstacle that prevents the court from hearing the witness' direct testimony. In Khelawon at paragraph

78, the court noted it is well established that necessity is not to be equated with the unavailability of the witness. The necessity criterionis given a flexible definition. [27] The court noted that in some cases, such as K.G.B., where a witness recanted an earlier statement, necessity is based on theunavailability of the testimony, not the witness.

However, notwithstanding the criterion of necessity can be met on varied bases, thecourt noted that the context giving rise to the need for the evidence in its hearsay form may well impact the degree of reliability requiredto justify its admission. [28] In an earlier case, R. v. Smith, (SCC), [1992] 2 S.C.R. 915, Lamer C.J. noted that the criterion of necessity mustbe given a flexible definition capable of encompassing diverse situations. What these situations will have in common is that the relevantdirect evidence is not, for a variety of reasons, available.

Necessity of this nature may arise in a number of situations. In R. v. F.(W.J.), (SCC), [1999] 3 S.C.R. 569, at paragraph 36, McLachlin J., writing for the majority, noted that necessity should not beapproached on the basis that the case must fit into a preordained category. Instead, it is a matter of whether, on the facts before the trialjudge, direct evidence is not forthcoming with reasonable effort.

The reasons for that necessity may be diverse -- ranging from totaltestimonial incompetence to traumatic consequences to the witness of testifying. [29] The Crown argues that although the unavailability of the witness is not required in order for the necessity criterion to be madeout, the lack of attendance at trial by C.L. has made her evidence unavailable. The Crown relies on R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520, and on R. v. Giroux, [2013] B.C.J. No. 2163. [30] The defence submits there is no reported decision on similar facts in which a statement has been held admissible.

The defencepoints out that: (

a) no subpoena was personally served on C.L.; (

b) there is no evidence C.L. was aware of the trial date; (

c) the affidavit evidence of service of the subpoena, at best, displays a casual indifference to the truth; and (

d) the police made no real effort to ensure that the witness was aware of the trial date. The trial date was not confirmed with C.L. inany way. Moreover, the police/Crown took no steps sufficient to meet the test applied in R. v. Terezakis, 2006 BCPC 187. [31] The defence submits that on the facts before me, I cannot conclude that direct evidence from C.L. is not forthcoming withreasonable efforts.

The defence points to the observation made in Khelawon at paragraph 104 where the court said that: ... in an appropriate case, the court in deciding the question of necessity may well question whether the proponent of the evidence madeall reasonable efforts to secure the evidence of the declarant in a manner that also preserves the rights of the other party. The defence submits on the facts before this court, the defence of necessity has not been made out. [32] Both counsel acknowledged that the primary criterion to be addressed in this case was that of reliability.

Accordingly, althoughI have set out the legal principles and the position of the parties with respect to necessity, I intend to address the reliability criterion first. Reliability [33] The reliability inquiry focuses on the specific hearsay dangers raised by the proffered statement and whether the statement wasmade under circumstances that substantially negate the possibility that the declarant was untruthful or mistaken. In addressing thereliability criterion, I must be mindful that, at this stage, my role is a limited one.

The issue I must determine is the threshold reliabilityof the proffered statement, not the ultimate reliability. As noted in Khelawon, it is crucial to the integrity of the fact-finding process thatthe question of ultimate reliability not be pre-determined on the admissibility voir dire. [34] The Crown correctly noted that there is no set catalogue of factors to be considered in assessing the threshold reliability of astatement. The indicia of reliability vary from case to case. In Khelawon, at paragraphs 61 to 63, the court noted that the reliabilitycriterion can be met in two different ways.

One way is to show there is no real concern about the truth of the statement because of thecircumstances in which it came about. The other way is to show there is no real concern about the statement because its truth andaccuracy can be sufficiently tested by other means, for example, through cross-examination in court of the declarant under oath.

However, the court also suggested there may be other ways of testing the evidence. [35] In determining reliability, I must consider whether the facts surrounding the making of C.L.'s statement offer sufficientcircumstantial guarantees of trustworthiness such that the dangers associated with the use of hearsay evidence will be minimized. Thethree main dangers associated with the use of hearsay evidence are: (

a) the absence of an oath or solemn affirmation when the statement was made; (

b) the inability of the trier of fact to observe the witness and to assess the demeanour and, therefore, the credibility of the witness whenthe statement was made; and (

c) the lack of contemporaneous cross-examination of the witness by the opposing party. The Crown's Position [36] The Crown's position is that the evidence contained in C.L.'s statement of November 17, 2015, meets the threshold ofreliability. The Crown notes, although C.L.'s statement was not under oath, that is not fatal to a consideration of whether thresholdreliability has been met. The Crown submits that making the taking of an oath or the giving of a warning a strict requirement before awitness statement is taken would be contrary to the flexible approach set out by the Supreme Court of Canada.

[37] The Crown acknowledges C.L.'s statement was not taken under oath. However, the Crown submits the admissibility inquiryinto threshold reliability should not focus on the question whether there is reason to believe the statement is true. Rather, it should focuson the question whether the trier of fact will be in a position to rationally evaluate the evidence. In this regard, the Crown points outthere is corroborating evidence from Mr. Nam Nguyen, a witness who testified in the trial proper, that he was present with C.L. at theMusic Box on the night in question. He also points out Mr.

Nam Nguyen knew someone named [omitted for publication] and he knewthat person through C.L. Mr. Nam Nguyen, as well, provided corroboration about a number of points regarding the incident at theMusic Box which dovetail with the statement made by C.L. [38] The Crown also points to the fact that the police officers who interviewed C.L. made it clear to her they wanted her to talk aboutthe incident in her own words and they were interested in knowing what she saw. Ultimately, the Crown submits, I must decide whetherI can be satisfied that C.L.'s observations meet the threshold of reliability.

The Crown submits there are other indicia of reliability whichthis court should consider. The Crown submits that the demeanour of the witness can be assessed from the audio which is of goodquality and can be easily heard. The Crown notes C.L. asked appropriate questions and distinguished between things she actually sawand things she assumed. The Crown further submits there is no evidence that C.L. had a reason to fabricate her statement. [39] The Crown urges the court to take into account the entire context of the conversation.

In particular, he notes C.L. was a matureindividual, approximately 30 years old at the time she gave the statement. The Crown submits it would be clear to a person of that agethat she is required to tell the truth when asked by police officers to provide information regarding a violent incident at a karaoke bar. The Crown notes C.L. did not appear to the police officers to be under the influence of drugs or alcohol. Moreover, in this case, C.L.knew the accused through her family. She had known him since they were children.

The Crown submits, in the circumstances, I shouldinfer that C.L. understood the significance and consequences of her statement regarding T.H.D. [40] The Crown submits there is nothing to suggest there was coercion between the police officers and C.L. when they attended ather residence. The Crown points out that at the beginning C.L.'s statement is largely narrative. He submits this was not a situationwhere the police were feeding C.L. information.

He acknowledges that the police did ask questions, but they were clarifying questions. [41] In sum, in all of the circumstances, the Crown submits there are sufficient guarantees of trustworthiness. Accordingly, C.L.'sstatement should be found to be reliable and admitted into evidence. The defence position [42] The defence position is that the Crown has not demonstrated the threshold reliability of the statement on a balance ofprobabilities. The defence points out there are no adequate substitutes for reliability. In particular, he notes the following points aboutthe statement made by C.L.: (

a) it was not made under oath or solemn affirmation; (

b) there was no particular assertion that C.L. was obliged to tell the truth or that there might be penal consequences or any otherconsequences if she did not; and (

c) C.L.'s statement has been significantly edited. Accordingly, the court cannot speculate as to the effect of the edited portions of thestatement on the remaining statements made by C.L. [43] The defence submits I must consider the factors that would likely have been inquired into during the course of cross-examination if C.L. had been available to testify. He argues it cannot be said in the circumstances of this case that the usual concernsabout hearsay evidence were largely alleviated because of the way in which the statement came about.

The defence argues that C.L.'sstatement is replete with leading questions and statements by the police which suggest the police theory of the case to C.L. The defencealso points to a number of instances during the interview when C.L. made a statement that suggested she had made personal observationsonly to clarify later in the interview by asserting she had been told information by other people at the Music Box. The defence submitsin these circumstances cross-examination is crucial. The defence notes there is no way of knowing what C.L. really saw.

Moreover,there is no way of telling how much of her evidence was coloured by the police theory of the case. Analysis - Threshold reliability [44] I now turn specifically to my analysis regarding threshold reliability. As I have already noted, I am mindful that, at this stage ofthe proceedings, I am only dealing with the threshold admissibility of C.L.'s statement and not the ultimate reliability of that statement. My role at this point is to determine whether or not the circumstances surrounding C.L.'s statement provide circumstantial guarantees oftrustworthiness.

It is trite to observe that the guarantees of trustworthiness are to compensate for and counteract the traditionalevidentiary dangers associated with hearsay; see R. v. Hawkins, (SCC), [1996] 3 S.C.R. 1043, at paragraphs 74 to 75;and R. v. Terezakis. [45] At the very beginning of Khelawon, the court acknowledged the general principle that all relevant evidence is admissible andthe rule excluding hearsay is a well-established exception.

In briefly reviewing how the exception came about, the court said atparagraph 2: While no single rationale underlies its historical development, the central reason for the presumptive exclusion of hearsay statements isthe general inability to test their reliability. Without the maker of the statement in court, it may be impossible to inquire into thatperson’s perception, memory, narration or sincerity. The statement itself may not be accurately recorded. Mistakes, exaggerations ordeliberate falsehoods may go undetected and lead to unjust verdicts.

Hence, the rule against hearsay is intended to enhance the accuracyof the court’s findings of fact, not impede its truth-seeking function. However, the extent to which hearsay evidence will presentdifficulties in assessing its worth obviously varies with the context. [46] In Khelawon, at paragraph 3, the court noted that the trial judge must be mindful that hearsay evidence is presumptivelyinadmissible. Accordingly, the trial judge’s function is to guard against the admission of hearsay evidence which is unnecessary in the

context of the issue to be decided, or the reliability of which is neither readily apparent from the trustworthiness of its contents, nor capable of being meaningfully tested by the ultimate trier of fact. [ 47 ] In the present case, I have before me a digitally recorded statement made by C.L. at her home to two Vancouver Police Department officers. The evidence in the voir dire established the following points about that statement: (

a) the statement was taken on November 17, 2015, a little more than three years after the incident at the Music Box on June 23, 2012; (

b) the statement was digitally recorded, but not videotaped; (

c) the statement was not given under oath or solemn affirmation or solemn declaration; (

d) there was no caution or warning given that the statement could be used in evidence or that criminal sanctions exist for making a false statement; (

e) the statement provided to the court was edited to remove inadmissible evidence. [ 48 ] I now address the traditional dangers identified in the case law regarding the admission of hearsay evidence. Absence of Oath or Affirmation [ 49 ] The Crown acknowledges C.L.'s statement was not given under oath. However, it argues this is not fatal to a finding that the threshold reliability has been met.

The Crown submits this court should not be focusing, at least at this stage, on whether the statement is true as much as on whether this court is in a position to rationally evaluate the evidence when assessing ultimate reliability. In this regard, he points to the fact there is corroborating evidence from Mr.

Nam Nguyen who gave evidence at the trial proper which dovetails with a number of the statements made by C.L. [ 50 ] In K.G.B. , at paragraph 96 , Lamer C.J., writing for the majority of the court, made it clear that there may be situations in which a trial judge concludes that an appropriate substitute for the oath is established and that notwithstanding the absence of an oath the statement is reliable. He noted further -- "Other circumstances may serve to impress upon the witness the importance of telling the truth, and in so doing provide a high degree of reliability to the statement.

While these occasions may not be frequent, I do not foreclose the possibility that they might arise under the principled approach to hearsay evidence." [ 51 ] However, Lamer C.J. also observed there remain compelling reasons to prefer statements made under oath, solemn affirmation or declaration. First, while an oath will not motivate all witnesses to tell the truth, its administration may serve to impress on more honest witnesses the seriousness and significance of their statements, especially where they incriminate another person in a criminal investigation.

Moreover, the presence of an oath or other solemn affirmation will increase the evidentiary value of the statement when it is admitted at trial. Additionally, the presence of an oath or solemn declaration may have another positive effect on the declarant's truthfulness because the knowledge that a sworn statement exists should weigh heavily on the mind of someone who considers lying in a statement or recanting his or her prior statement to lie at trial. This is a

summary of Lamer C.J.'s comments at paragraphs 89 to 92 in K.G.B . [ 52 ] I appreciate that the comments made by Lamer C.J. were made in the context of a case involving prior inconsistent statements. Nevertheless, I am satisfied those observations have equal applicability to the present case. There is no direct evidence before this court that allows me to conclude there were other circumstances that impressed upon C.L. the importance of telling the truth.

The Crown argues I should infer C.L. knew she was required to tell the truth from all of the circumstances, including the fact that she was a mature young woman at the time she was interviewed. I am not able to draw that inference based on the evidence before me in this voir dire . Inability to observe the witness [ 53 ] In K.G.B. , Lamer C.J. noted that the proponents of the orthodox rule limiting the admissibility of hearsay evidence emphasize the many verbal and non-verbal cues which triers of fact rely upon in order to assess credibility.

Lamer C.J. noted that the trier of fact can assess the relationship between the interviewer and the witness to observe the extent to which the testimony of the witness is the product of the investigator's questioning. Such subtle observations cannot be gleaned from a transcript. [ 54 ] Having said that, Lamer C.J. noted that all of the indicia of credibility, and therefore reliability, are available to the trier of fact when a witness's prior statement is videotaped. In essence, through a video-recording the experience of being in the room with the witness and the interviewing officer is recreated.

Accordingly, a complete videotape record which duplicates the experience of observing a witness in the courtroom is an important indicium of reliability which would satisfy the principled basis for the admission of hearsay evidence; see K.G.B. , paragraphs 97 to 101 . [ 55 ] The Crown submits the demeanour of C.L. can be assessed from the digital recording itself and the circumstances regarding the taking of the statement. I appreciate that the audio-recording goes some way toward addressing the ability to observe the witness.

However, in my view, it is not a sufficient alternative to a videotaped record, in the circumstances of this case. In particular, having heard the digital recording and having read the transcript of the digital recording, I do not find it is sufficient to allow me as the eventual trier of fact to properly assess C.L.'s demeanour. In saying this, I appreciate that a trial judge's assessment of a witness' credibility and reliability cannot be based only or primarily on the manner in which the witness testifies. However, it is one of the catalogue of factors that can be considered.

Lack of contemporaneous cross-examination [ 56 ] In K.G.B. , Lamer C.J. noted that the lack of cross-examination is the most important of the hearsay dangers. He noted, at paragraph 102, that the appellant was correct to concede that the lack of contemporaneous cross-examination is the "most important of the hearsay dangers." He went on to note that this hearsay danger is impossible to address outside of a judicial or quasi-judicial process.

In particular, when a statement is taken in the course of an investigation before charges are laid, it is not possible for a witness to be cross-examined.

Accordingly, Lamer C.J. noted this: ... and other practical difficulties in requiring contemporaneous cross-examination tip the balance in favour of allowing cross- examination at trial to serve as a substitute. [ 57 ] The court in K.G.B. cautioned that it must be remembered the question is not whether it would have been preferable to have had the benefit of contemporaneous cross-examination, but rather, whether the absence of such cross-examination is a sufficient reason to keep the statement from the finder of fact. [ 58 ] In Khelawon , the court reviewed the Supreme Court of Canada decision in Smith .

In that case, the court considered the types of circumstances that tended to show whether a statement was true. In Smith , the mother of the victim received telephone calls from the victim on the night she was killed. Evidence of those four telephone calls and their contents was entered at Mr. Smith's trial.

When the matter was heard by the Supreme Court of Canada, Lamer C.J. commented on the reliability criterion as follows at paragraph 33: The criterion of "reliability" -- or, in Wigmore's terminology, the circumstantial guarantee of trustworthiness -- is a function of the circumstances under which the statement in question was made.

If a statement sought to be adduced by way of hearsay evidence is made under [such] circumstances which substantially negate the possibility that the declarant was untruthful or mistaken, the hearsay evidence may be said to be "reliable", i.e., a circumstantial guarantee of trustworthiness is established. [ 59 ] Lamer C.J. also considered the factors that may have been inquired into during the course of cross-examination if the declarant had been available to testify. He found that the usual reliability concerns were largely alleviated because of the way the first two statements came about.

However, with respect to a third telephone call, he held that the conditions under which the statement was made did not provide the level of circumstantial guarantee of trustworthiness that would justify the admission of the statement without the possibility of cross-examination. [ 60 ] In respect to the third telephone call, Lamer C.J. posited that the victim may have been mistaken about a certain event or she might have lied to her mother. He emphasized that he did not advance these alternative hypotheses as accurate reconstructions of what occurred on the night of the victim's murder.

He engaged in such speculation only for the purpose of showing that the circumstances under which the victim made the third telephone call to her mother were not such as to provide the circumstantial guarantee of trustworthiness that would justify the admission of its contents by way of hearsay evidence without the possibility of cross-examination; see Smith at paragraph 44 . [ 61 ] The significance of the Smith decision on the point in issue in the present case is that Lamer C.J. considered the factors that would likely have been inquired into during the course of cross-examination if the victim had been available to testify.

He concluded that his hypothesis showed the circumstances of the statement were not such as to justify the admission of the statement since it was impossible to say that the evidence was unlikely to change under cross-examination. In this regard, it is important to note that Lamer C.J. did not decide whether the victim was mistaken or whether she had lied to her mother.

However, he found it was enough to bar the admission of the third statement because the circumstances in which the declarant's statement was made gave rise to these issues; see Smith at paragraph 44 and Khelawon at paragraphs 69 to 72 . [ 62 ] In the present case, given the passage of time and the circumstances of the incident at the Music Box, some of the factors that would likely be inquired into during cross-examination include the following: (

a) C.L.'s ability to observe, recall, and recount accurately the events at the Music Box; (

b) C.L.'s sobriety or lack thereof; (

c) C.L.'s motive, including why she did not come forward at the time of the incident in 2012; (

d) the possibility that C.L. could be mistaken about what she observed; (

e) the possibility that C.L. had a reason or motive to fabricate; (

f) C.L.'s ability to separate what she had personally seen on the night in question from what she had heard from others; and (

g) the possibility that C.L.'s responses during the interview were affected by the information and leading questions put to her by the officers. [ 63 ] I do not know what answers C.L. would give if the lines of inquiry I have postulated above were pursued in cross-examination. However, to paraphrase Lamer C.J. in Smith , I cannot say that C.L.'s evidence could not reasonably be expected to change significantly if she had been made available to give evidence in person at this trial and subjected to cross-examination by the defence.

CONCLUSION [ 64 ] I am not satisfied on the balance of probabilities that the reliability requirement of the principled approach to the admissibility of hearsay statements has been met in this case. Given my conclusion on the reliability issue, I have not analyzed the issue of necessity. In Khelawon , the Supreme Court of Canada noted that courts should not use the principled approach to hearsay in a pigeon-hole fashion by determining if a previous court has allowed for a similar exception.

Instead, the principled approach to hearsay requires the court to consider such applications on a case-by-case basis by identifying the relevant concerns and the factors to be considered in determining admissibility. [ 65 ] In the present case, I find the hearsay dangers raised by the proffered statement have not been negated by the circumstances in which the statement came about. Moreover, I am satisfied, in the specific circumstances of this case, that the truth and accuracy of the

statement cannot be sufficiently tested because there are no adequate substitutes for testing the evidence of C.L. short of cross- examination. I find the Crown has not established the reliability criterion. Accordingly, C.L.'s statement of November 17, 2015, is not admissible. [ 66 ] MR. BOLAND: Thank you, Your Honour. Your Honour, thank you for your judgment.

In light of Your Honour's judgment, with regards to the remainder of the trial, at this stage, the Crown would not be in a position to provide any evidence with regards to -- any identification evidence that T.H.D. is the person responsible for the alleged attacks as set out in the allegations in the indictment and, as such, at this stage, rather than leading evidence with regards to the incidents themselves with the foregone knowledge that there would be no evidence with regards to that key issue -- [ 67 ] THE COURT: Yes. [ 68 ] MR. BOLAND: -- I do invite the court to acquit T.H.D. [ 69 ] MR.

DONALDSON: I join in that, Your Honour. [ 70 ] THE COURT: All right. Given counsel's submission following my ruling in which I found that C.L.'s statement was not admissible because it has not met the criteria of reliability, and since no other evidence will be called with respect to identification, I find that the charges against T.H.D. have not been proven and that an acquittal should be entered. [ 71 ] MR. DONALDSON: Thank you, Your Honour. [ 72 ] MR. BOLAND: Thank you, Your Honour. [REASONS FOR JUDGMENT CONCLUDED]