R. v. Rogerson Date:, 2015 BCPC 451

Citation: R. v. Rogerson Date: 20151006 2015 BCPC 451 File No: 24550-1 Registry: Castlegar IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RICHARD TYCE ROGERSON ORAL RULING OF THE HONOURABLE JUDGE R. HEWSON Counsel for the Crown: S. Sinclair Counsel for the Defendant: D. Karp Place of Hearing: Castlegar , B.C. Date of Hearing: October 6, 2015 Date of Judgment: October 6, 2015

[1] The complainant made a statement to a police officer on February 9, 2015. On that date, the complainant told the policeofficer that the accused had put a 45 caliber revolver in her mouth, threatened to kill her, and then fired a round from the revolver insidetheir house.

Yesterday, she testified that she was lying when she spoke to the police officer because the accused was cheating on her andshe wanted to get him in trouble. [2] The Crown has applied to have the February 9 statement admitted on the trial for the truth of its contents, as an exception to therule excluding hearsay in accordance with the principles set out in R. v. B.(K.G.), (SCC), [1993] 1 SCR 740, andamplified in other cases. A voir dire was declared. [3] The complainant was provided with a copy of her statement, and the Crown played an audio recording of the statement incourt.

The complainant admitted that it was her statement, and adopted some parts of it as true. However, she did not adopt all of it. She said she was lying when she told the police that the accused grabbed her by her hoodie and threw her into a wall before draggingher down the hallway. She said she lied when she told the police officer that he choked her until she could not breathe, and put the gunin her mouth. She said she lied to the police officer when she told him that the accused fired a shot.

There were a number of otherinconsistencies between her evidence in court and the statement made on February 9. [4] The complainant testified that she left the house that she shared with the accused, and went immediately to the nearby hospital. At the hospital, the nurse on the front desk called 911 for her and she spoke to a police officer shortly after that. The statement to thepolice was audiotaped, but she was not placed under oath or warned of the consequences of making a false statement. [5] As a starting point, all relevant evidence is admissible.

The rule excluding hearsay is an exception to that general principle.

The main rationale for the exclusion of hearsay statements is the general inability to test their reliability. [6] Over time, a number of exceptions to the rule excluding hearsay have been created by the courts where the dangers of admittingthe evidence were sufficiently alleviated by the circumstances in which the hearsay statements were made. [7] In the last several decades, the courts have moved away from strict rules and the categorization of types of statements, towardsa principled approach based on the related concepts of necessity and reliability. The cases of R. v. Khan and R. v.

Smith established thathearsay evidence would be admissible where the requirements of necessity and reliability were met. Those cases made it clear that bothnecessity and reliability must be interpreted flexibly, in the light of the circumstances of each case in order to ensure that the principledapproach to hearsay did not become a rigid, category-based analysis. The decision in R. v. B. (K.G.) involved recanting witnesses. It wasan application of the principles of necessity and reliability to circumstances involving prior inconsistent statements in which the declarantwas available for cross-examination.

The case of R. v. U. (F.J.) (SCC), [1995] 3 SCR 764 was another application ofthe principles of necessity and reliability to a prior inconsistent statement, with a difference in the available indicia of reliability. In R. v.B. (K.G.), the indicia of reliability arose out of the manner in which the statements were taken, which involved oaths, warnings andvideotape. In R. v.

U. (F.J.) the indicia of reliability arose out of the striking similarity between the prior inconsistent statement and astatement made by the accused. [8] It is important to recall that, at this stage, I am only concerned with threshold reliability. The distinction between threshold andultimate reliability is a reflection of the difference between admitting evidence, and relying upon it to decide the issues in the case. Theburden of proof is the balance of probability, and that burden lies on the Crown. [9] Both parties agree that the prior inconsistent statement was voluntary.

Although necessity and reliability are interrelated, I willdeal with necessity first and reliability second. [10] Like the other cases involving recanting witnesses and prior inconsistent statements, the prior inconsistent statement here isnecessary because evidence of the same quality cannot be obtained at trial. As Karakatsanis J. held in R. v. Youvarajah, 2013 SCC 41, [2013] 2 SCR 720 at para 22: “Where a witness recants from a prior statement, necessity is established.” She cited the SCCruling in R. v. Khelawon, 2006 SCC 57 , [2006] 2 SCR 787 at para 78 for that proposition.

In that case, the Court pointed outthat necessity was based on the unavailability of the testimony, not the unavailability of the witness. [11] That brings me to reliability. Much of the evidence that I hear in court is totally unreliable, despite the fact that it is made inperson, under oath and with knowledge that it will be subject to cross-examination.

It is the process of hearing evidence in court thatuncovers the unreliability of the evidence. [12] When considering whether a prior inconsistent statement is sufficiently reliable to be admitted for its substantive truth on a trial,the court is looking for something that will replace the courtroom process. In R. v. B. (K.G.), it was the oaths, warnings and the use ofvideotape to allow the court to assess the demeanor of the declarants. In U. (F.J.), it was the strikingly similar statement of the accused.

These examples correspond to the two ways that Charron J. said that the reliability requirement could generally be met, in his ruling inR. v. Khelawon at paras 61-63. [13] In this case, concern about the reliability of the February 9 statement is not addressed by the circumstances under which it wastaken. The declarant was not under oath, and she was not warned of the potentially serious consequences of making a false statement.

Although the statement was audiotaped, in the circumstances that is a poor substitute for a videotape in which the body language, facialexpression and general demeanor of the declarant could be assessed. [14] However, that is not the only way to establish the reliability of a prior inconsistent statement. Other circumstantial guaranteesof reliability might be sufficient to make prior inconsistent statements substantively admissible, provided those other circumstancesprovide assurances of reliability which can replace those which the hearsay rule traditionally requires.

Again, the strikingly similarstatement is an example. [15] In this case, the prior inconsistent statement asserts that a shot was fired inside the house. There is no evidence on the voir dire

that anyone heard the sound of a gunshot, found an empty casing, or observed a bullet hole inside the house. The prior inconsistent statement asserted that the accused had sent text messages threatening to kill the declarant. The officer who took the statement apparently took a photograph of a text message on the declarant’s cell phone, but that photograph is not in evidence on the voir dire .

There is reference to it in the February 9 statement itself, but if I found that the statement was reliable because of something in the content of the statement, I would be engaging in the sort of circular argument that Prof. Paciocco (as he then was) warned against in the passage quoted at paragraph 100 of R. v. Khelawon . [ 16 ] The declarant has testified, under oath, that she lied to the police officer.

She may well instead be lying to me in court, but her evidence does raise a concern about her sincerity on February 9. [ 17 ] Although the declarant is available for cross-examination on the prior inconsistent statement, in all the circumstances I find that the Crown has not proven, on a balance of probabilities, that the statement made on February 9 is sufficiently reliable to be admissible for its truth on this trial. The hearsay statement made on February 9 is inadmissible. The Honourable Judge R. Hewson