Her Majesty the Queen ) Mr. K. Hutchinson for the Crown ) - v. –, 2012 MBPC 49

2012 MBPC 49 THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Mr. K. Hutchinson for the Crown ) - and – ) ) DONALD WAYNE COLOMB ) Mr. T. Bourcier for the Accused ) ) Decision on a voir dire delivered: ) May 31, 2012 LAWRENCE ALLEN, P.J. INTRODUCTION [1] On August 26, 2009, Patrick Bighetty was found dead in the home of John Bear in Pukatawagan, Manitoba. A subsequentautopsy determined that he died from multiple stab wounds to the abdomen. Later that day, Benjamin Dumas and Donald WayneColomb were arrested and charged with second degree murder in the death of Mr.

Bighetty. [2] On August 27, 2009, Benjamin Dumas provided a videotaped statement to the RCMP. The Crown, proceeding against theaccused separately, has asked that Mr. Dumas’ statement be admitted into evidence for the truth of its contents at Donald Colomb’spreliminary hearing. [3] Mr. Dumas was called as a witness at the preliminary hearing, but testified both that he had no recollection of having given astatement and that the statement he gave “is all a lie”.

The Crown acknowledges that the Dumas statement is hearsay, but seeks it’sadmission under the principaled approach, as an exception to the hearsay rules as developed in the Supreme Court cases of R v. Khan (SCC), [1990] 79 CR(3D) 1, R v. Smith [1992] 75 CCC 9(3d) 257, R v. K.G.B. (SCC), [1993] 79CCC(3D) 257 and F.J.U. v. The Queen (SCC), [1995] 101 CCC(3d) 97. [4] This is my decision as to the admissibility of Mr. Dumas’ statement. THE LAW [5] Justice Chartier of the Manitoba Court of Appeal in R v.

Woodard [2009] MBCA 42 set out “the principles and considerationsto be taken into account when a trial judge conducts an inquiry following a request to admit hearsay evidence using the principaledapproach” (paragraph 46). These criteria, from Woodard, are also quoted and followed in the subsequent Manitoba Court of Appealcases of R v. S(C.E.) [2009] MBCA 61 and R v. Thomas [2009] MBCA 85. [6] The first consideration is whether the proposed evidence is hearsay. [7] In this case, I am satisfied that Mr.

Dumas’ videotaped statement is hearsay as it is being adduced to prove the truth of itscontents and because there is a limited opportunity to cross-examine Dumas as one of his alternative explanations as to the statement isthat he does not remember having given it. [8] Because this statement is hearsay, it is presumed to be inadmissible unless it fits a common law exception to the hearsay ruleor can be admitted under the principaled approach exception to the hearsay rule as set out in R v. Khelawon 2006 SCC 57 ,[2006] 2 SCR 787 paragraphs 56 and 59, and R v.

Couture 2007 SCC 28 , [2007] 2 SCR 517 at paragraph 78. [9] The criteria for determining admittance as evidence, is a determination as to whether the evidence can be considered necessaryand reliable. This determination must be made after a voir dire. The onus is upon the party which seeks to adduce the evidence and thestandard is on a balance of probabilities (Khelawon at paragraph 47). [10] Justice Chartier, again from R v.

Woodard, as to necessity, says at paragraph 46(5): “The criteria of necessity is founded on society’s interest in getting at the truth and is intended to ensure that the evidence presented tothe court be in the best available form, usually by calling the maker of the statement as a witness. If that is not possible, it may be that ifthe evidence is to be adduced at all, it can only be presented in it’s hearsay form (see Khelawon at paragraph 49, and Couture atparagraph 79)”. [11] There appears no dispute that the Dumas statement contains information which would be relevant to the case against DonaldColomb.

The statement relates his version of the events leading to the alleged crime and details his involvement with the accused andtheir involvement with the deceased Patrick Joseph Bighetty. [12] At the preliminary hearing, Mr. Dumas testified that he has almost no recollection of anything he said to the RCMP and onlylimited recall of the circumstances surrounding the taking of his video statement. He also says he has no memory of the content of the

statement other than that “it is a lie”. [13] Neither Crown nor defence counsel pressed Mr. Dumas on the apparent contradiction between not remembering the statement,yet describing what was said as a “lie”. [14] Essentially, Mr. Dumas is offering a different version of events at trial than given in his videotaped statement.

Because hedisavows his earlier statement, that evidence is no longer available to the judicial process. [15] As stated by Justice Chartier, “necessity arises...not because of the unavailability of the witness, but rather because of theunavailability of the testimony” (paragraph 48). [16] Similarly in Woodard, the author of the disputed out-of-court statement was available to testify, but she claimed to have lost allmemory of the relevant events. Of that, J.

Chartier said: “The necessity criterion therefore relates to the fact that the only way to put her account of what transpired before the court was throughher statement” (paragraph 49). [17] I am satisfied that under the circumstances of this case, the necessity criteria has been met. [18] It is now necessary to turn to the requirement of reliability. In the case before the court, Mr. Dumas provided a videotapedstatement. He was not under oath, but he had been arrested, charged and cautioned. The Supreme Court in R v.

Couture 2007 SCC 28, [2007] SCJ No. 28 at paragraph 80, said: “Since the central underlying concern about hearsay is the inability to test the truth and accuracy of the statement, the reliabilityrequirement is aimed at identifying those cases where this concern is sufficiently over-come to justify receiving the evidence regardlessof this difficulty.

As explained in Khelawon, the criterion of reliability is usually met either because of the way in which the statementcame about, its contents are trustworthy, or where circumstances permit the ultimate trier of fact to sufficiently assess its worth”. [19] In the case before the court, the statement taken from Mr. Dumas was taken the next day after he had been arrested. He hadbeen placed in a cell at the RCMP detachment and had been fed and provided the opportunity for a full night’s sleep. The videotapedstatement was taken the next day. Mr.

Dumas was not put under oath nor was he specifically reminded of the importance to tell thetruth. He was cautioned that he need not say anything and that anything he did say could be used against him. In the course of giving thestatement, the witness gave three versions of what happened. After the first version, the investigating officer told Mr. Dumas that hisstory was not believable. A second version was then proffered. Again, the interviewer, Corporal Glenn Sells, told him that he did notbelieve him. Mr.

Dumas then provided a third version. [20] In assessing the circumstances of the making of the video, it is clear that Benjamin Dumas had been treated well by the RCMP. He had clearly been warned of the consequences of anything he said. It was also made clear to him that he was in serious trouble andwould be charged with second degree murder. It is also clear, as argued by defense counsel, that Mr. Dumas had a motive to implicateMr. Colomb and to lie about his own involvement. [21] It is settled law that in assessing the admissibility of a prior inconsistent statement, the statement is presumptively inadmissible.

The onus of establishing that indicia of reliability exist such as to displace the general exclusionary rule, lies in this case with the Crown. [22] In R v Blackman [2008] SCC 37 at paragraph 42, Justice Charron said: “There is no doubt that the presence or absence of a motive to lie is a relevant consideration in assessing whether the circumstances inwhich the statement came about provide sufficient comfort in their truth and accuracy to warrant admission.

It is important to keep inmind, however, that motive is but one factor to consider in the determining of threshold reliability, albeit one which may be significantdepending on the circumstances”. [23] In this case, Mr. Dumas clearly had a motive to lie, that being his own self-preservation. The presence of this implied motive isone consideration in the balancing necessary to assess reliability.

In Khelawon, the Supreme Court (at paragraph 93) said: “The court should focus on the particular dangers raised by the hearsayevidence sought to be introduced and on those attributes or circumstances relied upon by the proponent to overcome those dangers.” [24] In this case, the dangers presented by admission of Mr. Dumas’ statement include the obvious concern that it may not bereliable because of his implied motive to shift blame from himself to the accused, Donald Colomb.

Further, there is concern that thestatement contains an evolved description of what happened that amounts to his third attempt to detail the events of the night in question. Additionally, there are inconsistencies between his statement and the testimony of some of the other witnesses called by the Crown. Mr.Dumas says that the victim was stabbed and left in the living room of Jonathon Bear’s house. He also said that Jonathon Bear waspresent when the victim was stabbed. Mr.

Bear testified that he was not present when this event took place and that he later found thevictim’s body in the bathroom of his house. [25] In his statement, Mr. Dumas said that at one point he was sitting on the front steps of Mr. Bear’s house. He says that he becamephysically ill there and vomited beside the steps. The RCMP later searched the area and were unable to locate vomit. [26] Also, witnesses at the preliminary hearing, Elisa Dumas and Belinda Bighetty, testified that earlier on the night in question, Mr.Dumas and Mr. Colomb socialized with them at Belinda Bighetty’s house. Mr.

Dumas in describing his activities of that night, makesno mention of this socializing. [27] In R v. Blackman [2007] SCC, the Supreme Court said of Khelawon:

“The court clarified that in appropriate circumstances, a corroborative item of evidence can be considered in assessing the threshold reliability of a statement...The lack of corroborative evidence would seriously undermine the trustworthiness of the statement and indeed would likely be fatal to its admissibility. On the other hand, an item of corroborative evidence can also substantiate the trustworthiness of a statement” (paragraph 55). [ 28 ] In the case before the court, Mr. Dumas ultimately provides a version of the incident in which he states the following: 1.

He was in the company of Donald Colomb and they drank alcohol throughout the evening and night in question; 2. The incident with the deceased victim took place at Jonathon Bear’s house; 3. The incident resulted in both he and Mr. Colomb being covered in blood; 4. That after the incident, he and Mr. Colomb went to Belinda Bighetty’s house and she asked him what they had done and he told her; 5. That at Belinda Bighetty’s house, he and Mr. Colomb changed their clothes and put the bloodied clothes in the washing machine; 6.

That Donald Colomb stabbed the victim multiple times in the abdomen with a knife. [ 29 ] All of the above is corroborated by the various other witnesses called by the Crown on the voir dire . Ms. Bighetty testified that Mr. Dumas and Mr. Colomb came to her house at approximately five o’clock in the morning. She confirms that there was blood on her floor where the accused and Mr. Dumas’ clothes had been piled. She also said that they had placed their clothes in her washing machine and changed into other clothes. She also testified that they smelled strongly of alcohol. [ 30 ] RCMP Constable L.

Theriault testified that on the morning after the alleged murder, he went to the residence of Belinda Bighetty and found clothing in a washing machine with “reddish brown water”. The Constable said he seized clothing with red staining. The autopsy report confirms the victim was stabbed multiple times in the abdomen. Additionally, a DNA Report was filed at the Preliminary Hearing which indicated that the deceased’s blood was found on the left shoe of Mr. Dumas. [ 31 ] Elisa Dumas, another witness called by the Crown on the voir dire , provided evidence which corroborates Mr.

Dumas’ statement that he and Donald Colomb went to Belinda Bighetty’s residence on the night after the event which led to the death of the victim. She also corroborates that Ben Dumas had told the women in the home what had happened. “They just left after we found out what they did”. (Transcript page 34, volume 2, lines 7-8). She also corroborates seeing bloody clothes in the washing machine. Q. Did you look inside the washer? A. Yes. Q. What did you see inside the washer? A.

Their clothes and bloody. (Transcript volume 2, page 37, lines 29-32). [ 32 ] All of the corroboration provided by the two civilian witnesses and the police officer go to the question of the reliability of the statement provided by Benjamin Dumas. [ 33 ] In R v. MNP [2012] MBQB 70, Justice Oliphant of the Court of Queen’s Bench Manitoba, dealt with the admissibility of an out of court statement.

He said: “It has been held that reliability may be established by a combination of the following factors including: that the statement was made on a solemn occasion; that the declarant was adverse in interest to the defendant; that the declarant had particular means of knowledge of the events described; that the statement distinguished between the personal knowledge of the declarant and information he received from others; and that the statement was officially recorded and preserved” (paragraph 15). [ 34 ] As to the issue of what constitutes ”a solemn occasion”, he says: “The evidence that may substitute for an oath in connection with the videotaped statement may include evidence from which it can be inferred that when the statement was made, the declarant appreciated the solemnity of the location and the importance of telling the truth.

It may also include external, reliable evidence that tends to confirm in a meaningful way, the reliability of the material aspects of the out-of-court statement” (paragraph 17). [ 35 ] In the case before the court, the external evidence which tends to confirm the material aspects of the statement have been discussed above. [ 36 ] As to evidence relating to the “solemn nature” of the occasion, the preliminary heard that Mr. Dumas had been arrested approximately 20 hours before the taking of the statement.

He had been in custody long enough to have been provided with three meals, including breakfast shortly before meeting with Corporal Sells of the RCMP. He was advised that Corporal Sells was a member of the Major Crime Unit of the RCMP. The statement was taken over approximately two hours and ten minutes, which included a break for Mr. Dumas to use the washroom. [ 37 ] At the outset of the interview, Mr. Dumas was reminded that he was being charged with second degree murder in relation to the death of Patrick Bighetty. He was also again charged and cautioned by Corporal Sells. [ 38 ] I am satisfied that Mr.

Dumas, under all of these circumstances, clearly understood the gravity of his situation. While he

originally provided several versions of events before a final version, I am satisfied that none of the interactions with the RCMP interviewer could be looked upon as manipulative or coercive. While there is no guarantee that circumstances can dictate honesty, there is certainly evidence that in this case, Mr.

Dumas was treated well in care, he spoke to legal counsel, he was charged and cautioned and he appeared to understand the serious nature of his circumstances. [ 39 ] In looking at both the evidence provided by other witnesses that is either corroborative or not supportive, it is clear that there is evidence that does not corroborate his story, such as the fact that he says Donald Colomb carried the knife used out of Jonathon Bear’s house and discarded it in some long grass. The RCMP found the knife apparently used in the incident at the scene. Jonathon Bear’s account of his contact with Mr. Dumas and Mr.

Colomb does not match that provided by Benjamin Dumas. [ 40 ] Conversely, as previously canvassed, there is other evidence which I believe does corroborate parts of Benjamin Dumas’ story in a meaningful way. [ 41 ] It seems to me that a weighing of corroborative evidence against not supportive evidence, is an exercise that should be undertaken within the context of ultimate reliability as opposed to threshold reliability. As stated by J. Chartier in Woodard (Supra) at paragraph 46: “

(7) A distinction must be made between ‘ultimate reliability’ and ‘threshold realiability’. Only the latter is inquired into on the admissibility voir dire ”. [ 42 ] Having earlier stated that I believe the Crown has met it’s onus to establish the necessity of the admission of Benjamin Dumas’ statement into evidence, I am also able to find that on a balance of probabilities, the second requirement of the threshold test has been met. I do so for the following reasons: 1. Mr. Dumas’ comments in the statement make it clear that he understood the grave or “solemn” nature of the situation of the statement he gave.

He was providing this statement after being told he was being charged for second degree murder. I am satisfied that he provided the statement voluntarily and was comfortable in the location and surroundings he found himself in; 2. The statement was videotaped. This technology will allow the ultimate trier of fact to observe the nuance of the inter-action between Mr. Dumas the Corporal Sells; 3. Mr. Dumas was made available for cross-examination as to why he was not confirming his statement. Mr. Dumas said at one point that the statement he provided “was a lie”.

If he knows that it is a lie, then he must know what he said. At other times he claimed not to remember the giving of the statement at all. One way or the other, he was examined about the statement and is available for further examination and cross-examination if that should be required; 4. There is what appears to be reliable external evidence which corroborates some of the significant details of the statement provided. [ 43 ] While Mr. Dumas’ lack of memory of the events leading to Mr.

Bighetty’s death does result in a loss of the ability to cross- examine him, I am satisfied that the videotaped nature of the statement does provide details of the body language and mannerisms of the deponent at the time of the making of the statement. Additionally, there is considerable other evidence which allows for the testing of the statement against all the other witnesses who have testified.

This does not provide for the best possible replacement for cross- examination, but it does create a situation which is “not a complete loss...of the right of cross-examination” ( Woodard , paragraph 54). [ 44 ] It is noteworthy that Benjamin Dumas’ statement was made soon after the events took place. Additionally, there is no evidence to indicate that he spoke with or colluded with anyone else in the version of events he provided to police. As to the issue of his motive to lie and his altered version of events within his statement, I refer to the decision of Justice Greenberg in R v.

Cansanay [2010] MBQB 79 at paragraph 48: “The fact that Amyotte has demonstrated a willingness to lie, his criminal background, the existence of a motive to lie...are all relevant to the reliability of Amyotte’s statement. However, they are all factors which the jury can consider in determining ultimate reliability. Amyotte is available to testify All of these matters can be put to him in cross-examination before the jury, as they were in the voir dire , so that the jury can assess whether to accept any of his evidence.” [ 45 ] While it can be argued that in Cansanay , Mr.

Amyotte was a re-canting witness as opposed to a forgetful witness, the net result is the same. Both are witnesses whose earlier testimony is no longer available. CONCLUSION [ 46 ] Having concluded that the Crown has met its onus as to establishing that Benjamin Dumas’ statement is both necessary and reliable, it is appropriate to consider whether the probative value of the evidence is outweighed by its prejudicial effect.

In this case, I am satisfied that an eye-witness account of the events leading to the death of Patrick Bighetty are highly probative and outweigh any prejudicial effect that may flow from the admission of this statement into evidence for the truth of its content. [ 47 ] Accordingly, I am satisfied that the statement of Benjamin Dumas will be admitted into evidence at this Preliminary Hearing. “Original signed by:” ____________________________ Judge Lawrence Allen