HER MAJESTY THE QUEEN - v. –, 2011 NBPC 33

IN THE PROVINCIAL COURT OF NEW BRUNSWICK JUDICIAL DISTRICT OF ST. STEPHEN Citation: 2011 NBPC 33 Date: August 31, 2011 CASE #02745704 BETWEEN: HER MAJESTY THE QUEEN - AND – SAVITA SINGH-MURRAY, JOSEPH VAUGHN McCLUSKEY, MOHAMED HABIB YUSUF, and RAVINDRA HARIPRASAD Before: The Honourable Judge William McCarroll Date of Decision: August 31, 2011 Appearances: Monica McQueen and Jill Hartlen, for Her Majesty the Queen Randall A. Wilson, for Savita Singh-Murray Joel P. Hansen, for Joseph Vaughn McCluskey Patrick E. Hurley, Q.C., for Mohamed Habib Yusuf John King, Q.C., for Ravindra Hariprasad MCCARROLL, Prov. Ct.

J. [ 1 ] The second legal issue I must deal with this morning is the admissibility of, so called, KGB statements by Mr. and Mrs. Nabi that were given to the police officers in the police station in Ontario. Mr. and Mrs. Nabi were arrested on December the 4 th , 2008, they were

arrested by Canadian authorities as they were attempting to cross the border from Canada into the United States. They were taken by theCBSA agents, in handcuffs, to the nearest properly equipped RCMP detachment so that KGB statements could be obtained. They did soat the direction of the RCMP. The stated intention of the RCMP officer in charge of the investigation, Sergeant Blair, was to lay nocharges against Mr. and Mrs. Nabi as he considered them victims, or commodities, not criminals. He conceded, however, they couldhave been charged with a criminal offence based on the evidence.

In any event, his decision was to turn them over to the CBSA agentsto be dealt with under their legislation. The CBSA agents held a quick hearing the next day and ultimately ordered the Nabis to leave thecountry by April, information that they did share with the RCMP at some point in the investigation. Mr. and Mrs. Nabi left Canada in April of 2009.

Charges against the four accused in this matter for conspiracy to smuggle were laid on May the 11th, 2009, in this court, where a warrant was requested, and they were subsequently before the court, I believe it was on May the 14th, 2009, roughly one monthor so after the Nabis were forced to leave Canada. The RCMP made efforts to locate them and convince them to testify at the trialwithout success. The Nabis did not return to testify and the Crown now argues that the KGB statements should be admissible asevidence having met the twin tests of reliability and necessity.

Although the Court has some concerns about the reliability of thestatements, primarily because of the absence without explanation of a police witness who may have spent five to ten minutes alone withthe Nabis immediately after their arrest and prior to the taking of the KGB statements, the major concern for the Court, however, is theissue of necessity. In this regard, the onus is on the Crown to prove on the balance of probabilities that the necessity requirement hasbeen met.

In this particular case, it’s the Court finding that the necessity requirement as contemplated by the caselaw has not been metand the KGB statements should not be admitted as evidence. The following are the reasons for that decision. In years past this wouldnot have been an issue. The strict rules against the admission of hearsay evidence would have precluded the admissibility of the Nabistatements. Unless the evidence could be admitted as an exception to the hearsay rule, which we used to refer to as “pigeonholing” it didnot get in, period.

The primary concern for the rule was the reliability of the evidence because the person giving the evidence through astatement was not available for cross examination. The rules changed in 1993 in the case of R. v. Kahn, (SCC), [1990]2 SCR 531 where the Supreme Court moved away from the pigeonhole approach, where everything was excluded unless you couldbring it within one of the exceptions to the hearsay rule, to a principled approach which focused on indicia of reliability and necessity todetermine admissibility. Since Kahn the new approach has been refined by Supreme Court decisions in R. v.

Smith, (SCC), [1992] 2 SCR 915, R. v. KGB, (SCC), [1993] 1 SCR 740, R. v. Starr, 2000 SCC 40 , [2000] 2 SCR144, and R. v. Khelawon, 2006 SCC 57 , [2006] 2 SCR 787. What has not changed, however, is the presumption that hearsayevidence is inadmissible unless the Crown proves on the balance of probability it meets the tests of reliability and necessity. For thepurposes of this decision it’s not necessary for the Court to analyze those Supreme Court decisions in greater detail. They are what theyare and the rules that now apply are clearly set out in Khelawon. There are two cases, however, cited by Ms.

McQueen in her, I have toadd, excellent brief, which are worthy of further analysis because they deal with the precise issue we are dealing with in this case: theunavailability of the witness. The first one is the case of R. v. Orpen, (2002), 165 CCC (3d) (Ont. C.A.) where the Crown tried tointroduce a statement given by a sexual assault victim who had moved to the United States and refused to return to Canada to testify. The Court found that this did not satisfy the necessity requirement for admission of the hearsay statement under the principledapproach.

It was found that the officer had located the witness in the United States and had some conversation with her about returningto Canada to testify. However, the Court found that the officer had not made any effort to convince the witness to voluntarily return. [2] The Ontario Court of Appeal case R. v. O’Connor, (2002), 170 CCC (3d) provides further guidance but with an unusual twist. Noweven though the appellant, (the accused in that case) had conceded that on the facts the necessity requirement had been met, the OntarioCourt of Appeal took issue with that concession and referring to an earlier decision in R. v.

Finta, (1992), (ON CA),73 CCC (3d) 65 (Ont. C.A.) had the following to say, and I’m quoting, “Despite the appellant’s concession, I have serious reservations whether Grodem’s statement meets the necessity requirement for theadmission of hearsay statements. It’s not sufficient for the Crown to simply show that a witness is not compellable because he or she isout of the jurisdiction, to satisfy the necessity requirements. Efforts should be made to pursue other options (teleconference orcommission evidence are two) before one reaches the conclusion that admitting evidence by way of hearsay statements is necessary.

Necessity cannot be equated with unavailability of a witness. Rather it must be shown that hearsay is the only available means of puttingthe evidence before the court.” [3] A number of shortcomings in the RCMP’s efforts to have the Nabis present here to testify have surfaced in the testimony of theCrown witnesses, which ultimately have led to the Court’s decision to exclude the statements. And in no particular order theshortcomings that I recognize are as follows: the evidence of the person charged with getting the Nabis to come here to testify,Constable Burke, was anything but reliable.

While, in my opinion, there was no attempt on the officer’s part to mislead the Court, hisgrasp of the facts surrounding the efforts of the RCMP to obtain these witnesses was considerably lacking. Perhaps he was charged withcompleting too many tasks by his superior, in particular, the officer in charge of the investigation, Sergeant Blair.

Important faxes oremails detailing efforts to obtain the witnesses from Guyanna and Surinam were inexplicably missing from the file and he was forced torely, on many occasions, on his memory to recall these efforts, which took place more than a year prior to the date he testified. I simplycould not bring myself to rely on his testimony as always accurate or reliable. There was also a lack, it appeared, clearly a lack ofcooperation or coordination between the RCMP and the CBSA.

As I listened to the testimony of Constable Burke, Staff Sergeant Blair,and the CBSA agent Amadeo, I have to say I was dumbfounded by that seeming lack of coordination. I wasn’t left with the impressionthat there was any bad feeling or ill-will between the two agencies, just a lack of concern about the future availability of the Nabis to testify in a serious criminal case. Charges in this matter were laid on January the 11th, 2010.

And then all of a sudden, with the trial date being set for June the 10th, Constable Burke was assigned to find these people and convince them to return to Canada roughly a month,month and a half, before the trial was to commence. He obviously failed in his appointed task, but what could he and his superiors haverealistically expected to happen on such short notice and with such little effort. It really was very difficult for the Court to assess theoverall effort because of the weakness of Constable Burke’s evidence in this regard.

Again, I point out the onus is on the Crown to proveon the balance of probabilities that the test of necessity had been met. Going on, the evidence was clear that when the Nabis werereleased back into the community by CBSA the day after their arrest, they went to live with family, in Ontario, which was one of theconditions of their release. There’s no evidence whatsoever that in their quest to locate the Nabis, after they left Canada in April, that theRCMP ever contacted that family to find out if they knew where the Nabis were living. Again, it’s a seeming lack of a serious interest infinding them.

At one point, probably in May of 2010, (I can’t fix the dates because of the unreliability of the evidence of Constable

Burke in this regard) but probably in May of 2010 an officer in Guyanna made contact with Mrs. Nabi who agreed to return to Canada to testify if the RCMP would return the money the Nabis paid the undercover RCMP officers to smuggle them across the border. The Crown argues, vehemently, that they don’t pay witnesses to testify. The officer in charge of the investigation, Sergeant Blair, turned thumbs down on her offer to return, yet, the RCMP agent, Mr. Laking, was paid $37,500.00 to assist the RCMP in the investigation and according to him another $37,500.00 after he testified, win, lose, or draw.

I’m fully aware that the argument can be made here that it’s like comparing apples to oranges, but, the optics leave something to be desired. [ 4 ] Finally, one has to question the decision of Staff Sergeant Blair to not charge the Nabis for what was clearly a criminal offence. The evidence against the Nabis was overwhelming and, and criminal charges were warranted. Using the discretion that every police officer has, and in particular the top brass of the police, he decided not to charge the Nabis. If he had charged the Nabis with the obvious charge, we wouldn’t be going through this exercise.

Their exclusion order would have been stayed and they would still be in Canada and compellable to testify. The officer used his discretion, which he properly had, not to charge and now the true consequences of that decision are evident. His evidence that he was “shocked” at the actions of the CBSA in releasing and deporting the Nabis has a somewhat hollow ring to it. He should have seen it coming and done something about it; for instance, an application to the Federal Minister of Immigration to exercise his discretion to keep the Nabis in Canada pending the laying of criminal charges against the smugglers.

I do not recall in the evidence that there was any suggestion that such a request was made. The evidence suggests that that avenue was open based on the answers from one of the witnesses, but it was not followed, and then to Sergeant Blair’s supposed shock the Nabis were gone just as ordered by CBSA. What did he think was going to happen? [ 5 ] The concept that it would be appropriate to charge the Nabis with no intention of following through with a trial, as one counsel suggested, is not one this Court would countenance.

I agree with the Crown in this regard; it would be inappropriate use of the policing powers to simply charge someone for a reason unrelated to the matters going to trial. [ 6 ] Crown counsel, in her able argument, suggested that one of the reasons no criminal charges were laid against the Nabis was that the investigation was continuing. Again, that was another exercise of discretion from Staff Sergeant Blair. The late appearance of Mr. Hariprasad in this investigation was a surprise according to Ms. McQueen and the RCMP wanted to gather more evidence.

Well the investigation continued for another four to five months with no suggestion that any further evidence was obtained against Mr. Hariprasad, Mr. Yusuf, or Mr. McCluskey as a result of this evidence gathering exercise. The point is, the RCMP made tactical decisions in this investigation and the Crown must live with the results of those decisions. A discretionary decision was made not to charge the Nabis, and as a result they are not available to testify and the Crown must live with that decision.

The bottom line is this: I interpret the Supreme Court of Canada decisions and the two Ontario Court of Appeal decisions to mean that there is an obligation on the Crown to do everything within its power legally to ensure the witnesses are present to testify. If the Crown fails to convince the Court on the balance of probabilities that that requirement has been met, then the necessity requirement for the admissibility of the KGB statements, in my opinion, has not been met and they are not admissible.

The required evidence in this case is lacking for a number of reasons, but primarily because of the unreliability of the testimony of Constable Burke in relation to the totality of the efforts made to locate and convince the witnesses to attend. In the end, whether it was an oversight, carelessness, failure to communicate, or failure to cooperate, it seems as if the Nabis just got lost in the shuffle between the CBSA and the RCMP. The Crown has failed to meet its obligation; the statements are not admissible. DATED at St.

Stephen, New Brunswick this 31 st day of August, 2011. _______________________________ William McCarroll Judge of the Provincial Court