R. v. B., 2011 MBPC 1

Date: 20110106 CITE# 2011 MBPC 1 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) ) Ms. Wendy Friesen, for the Crown ) - and - ) ) Billy Joe Couture, ) ) Mr. T Bourcier, for the Accused ) ) ) Judgment delivered: January 10, 2011 ) HARVIE, P.J. INTRODUCTION [1] The accused Billy Joe Couture is charged with three counts of break, enter and theft to dwelling houses in the City ofWinnipeg. Two offences are alleged to have been committed on September 30, 2009 and one on October 5, 2009.

Crown counsel electedto proceed by indictment and defence counsel elected for trial in Provincial Court. [2] Evidence respecting the September 30th break-ins was entered by consent. The complainant from the October 5th break-intestified as to the incident, but was unable to identify any of the perpetrators. Crown counsel called a co-accused young person (“M.W.”)who had provided a statement to the police after being arrested shortly after the October 5, 2009 break-in.

M.W. testified that he did notrecall being arrested by the police and giving a statement on October 5, 2009 and did not recall being involved in any offences involvingthe accused. He testified that in and around the time of the offences he was consuming drugs and alcohol on a regular basis, causing“blackouts” which affected his ability to remember events. M.W. was shown the video and a transcript of the statement made by him onOctober 5, 2009. He identified himself in the video but maintained his position that he could not recall making the statement.

Whenshown the transcript, M.W. testified that his ability to read was somewhat limited. When shown specific portions of the statement hetestified that he did not recall making the comments. [3] Defence counsel conceded that the statement was made on October 5, 2009. Crown counsel established that the statementmade to the police was inconsistent with the evidence given by M.W. and was allowed to cross examine M.W., who continued tomaintain that he was unable to recall any of the details of the statement or the break and enters.

Under cross examination by the defencehe reiterated that at the relevant time he was using powdered cocaine, marijuana and pills on a daily basis and that he experiencedblackouts as a result of his drug use. He also testified that he has seen a psychiatrist and has attended for mental health counselling andaddictions counselling. [4] During cross examination, Crown counsel suggested to M.W. that when he was speaking to the police he was telling the truth,a suggestion that M.W. did not adopt.

Neither Crown nor defence counsel suggested to M.W. that he was being dishonest when hetestified that he could not remember making the statement or participating in any of the break-ins. CROWN APPLICATION TO INTRODUCE STATEMENT [5] Crown counsel makes application to introduce the statement of M.W. in the trial as evidence against the accused Billy JoeCouture. The principles governing the admission of out-of-court statements were first set out R. v.

B. (K.G.) (SCC),[1993] 1 S.C.R. 740; (Supreme Court of Canada), [1993] 1 S.C.R. 740 and were discussed and expanded upon in R. v.Khelawon 2006 SCC 57 , 2006 S.C.C. 57 . Hearsay evidence, which is presumptively inadmissible because of thegeneral inability to test its reliability, can be admitted into evidence if certain indicia of necessity and reliability are established on a voirdire. It is common ground that the test of necessity can be met where a witness claims no memory of an incident. In such an instance,

necessity is based on the unavailability of the testimony as opposed to the witness. Defence counsel has conceded that the Crown has met the test of necessity. [ 6 ] While the concepts of necessity and reliability are distinct, the reasons necessitating the admission of an out-of court statement can be considered when assessing threshold reliability. Recognizing that the test of necessity can be met in a variety of ways, “the context giving rise to the need for the evidence in its hearsay form may well impact on the degree of reliability required to justify its admission:” see Khelowan (supra) at paragraph 78.

Referring to reliability as being a “key concern” in circumstances where the hearsay evidence is a prior inconsistent statement, the Court adopted the comments of Lamer C.J. in B. (K.G.) (supra) at pp.786-87: The reliability concern is sharpened in the case of prior inconsistent statements because the trier of fact is asked to choose between two statements from the same witness, as opposed to other forms of hearsay in which only one account from the declarant is tendered.

In other words, the focus of the inquiry in the case of prior inconsistent statements is on the comparative reliability of the prior statement and the testimony offered at trial, and so additional indicia and guarantees of reliability to those outlined in Khan and Smith must be secured in order to bring the prior statement to a comparable standard of reliability before such statements are admitted as substantive evidence. [ 7 ] The central issue in this case is whether, on a balance of probabilities, the statement of M.W. meets the test of threshold reliability so as to be admitted into evidence.

The test of threshold reliability was initially addressed by the Supreme Court of Canada in B.(K.G.) ( supra ) where the Court held that reliability is satisfied when the following three basic criteria are met: i. the statement is made under oath or solemn affirmation following a warning as to the existence of sanctions and the significance of the oath or affirmation, ii. the statement is videotaped in its entirety, and iii. the opposing party whether the Crown or defence, has a full opportunity to cross examine the witness respecting the statement. (para. 104) [ 8 ] While confirming the importance of the above criteria, the Supreme Court expanded the scope of the trial Court’s review when addressing the issue of threshold reliability.

To summarize the comments of the Supreme Court of Canada in Khelawon (supra), reliability can be established when certain general requirements are met establishing: 1) that there is no real concern about whether the statement is true or not because of the circumstances under which the statement was taken; or 2) that there is no real concern about the statement’s hearsay form because under the circumstances, the truth and accuracy of the statement can be sufficiently tested by means other than contemporaneous cross examination. (see paras. 62 and 63.) [ 9 ] Both counsel agree that it is important to review the totality of the circumstances when considering the issue of threshold reliability.

It is also important to remember that the issue of threshold reliability is distinct from ultimate reliability. While admissibility is governed by the rules of evidence, the weight ultimately attached to any admissible evidence rests with the trier of fact when considering the case as a whole. Even if the Court is satisfied that a statement meets the test of threshold reliability, the statement and any other evidence may not, at the end of the day, be sufficient to support a conviction. [ 10 ] Used as a starting point, the statement obtained from M.W. does not meet the three criteria set out in B.(K.G) (supra).

While a large portion of the statement sought to be admitted was videotaped, the statement was not taken under oath, but rather under charge and caution. As well, given M.W.’s evidence that he could not recall either making the statement or any of the details of the actual break-ins, there was little meaningful opportunity for cross examination. [ 11 ] Crown counsel acknowledges that the statement was not taken under oath, but argues that other circumstantial safeguards can be identified.

She points to the fact that M.W. was under arrest and had been charged and cautioned by the police, thus reinforcing the seriousness of his situation. She also submits that many individuals lack the appropriate respect for the oath, and that the absence of an oath should not, taken alone, be reason for the Court to conclude that the statement fails to meet the test of threshold reliability.

I would note that there is no evidence to suggest, nor was it ever put to M.W., that he did not understand or respect the solemnity of an oath or affirmation. [ 12 ] Standing alone, the lack of an oath does not render a statement unreliable. In Khelawon (supra) the Court acknowledged the at times unreliable nature of evidence given under oath.

But the Court also emphasized that it is the process which accompanies the oath which safeguards against unreliable evidence: To say that a statement is sufficiently reliable because it is made under oath, in person, and the maker is cross examined is somewhat of a misnomer. A lot of court room testimony proves to be totally unreliable. However therein lies the safeguard – in the process that has uncovered its untrustworthiness.

Hence the presence of adequate substitutes for that process establishes a threshold of reliability and makes it safe to admit the evidence. [ 13 ] The importance of the “process” as articulated in Khelowan (supra) emphasizes the need for the Court to consider the lack of opportunity for meaningful cross-examination. While Crown counsel acknowledges this, she cites a number of instances in which the Courts have admitted statements despite limited cross examination, pointing to the external circumstances which supported the reliability of the statement, and therefore its admissibility. In R. v.

Naicker , 2007 CarswellBC 2949 (BCCA) , an appeal by an accused who objected to the admissibility of an accomplice’s out-of-court statement to police was dismissed. The trial judge had admitted the statement despite the fact that it was not under oath and was not videotaped, concluding that there was significant external and compelling evidence reasons which supported the conclusion that the statement, which was a voluntary confession, was reliable.

Similarly, in R. v. Woodard 2009 CarswellMan 168 (ManCA) , a statement made by a witness who professed an inability to recall any of the substantive events was admitted over the objections of the accused.

The Appeal Court agreed that threshold reliability was met given that the statement was made under oath and was videotaped, where there was no motive to fabricate and where the statement was consistent with other evidence, and upheld the admission of the statement despite the limited ability for cross examination. [ 14 ] Since Khelawon (supra) , it is clear that the Court can consider external evidence to determine the reliability of the statement. These factors relate to the manner in which the statement was taken, as well as its contents of the statement itself.

Such evidence must be considered in all cases, but particularly in instances where a statement is not under oath and where the ability to test the veracity of the evidence through cross examination is truncated. CIRCUMSTANCES SURROUNDING THE STATEMENT The Position of the Crown [ 15 ] Crown counsel points to the circumstances around the taking of the statement which she says confirms its voluntariness and therefore its reliability. She also argues that there is sufficient external evidence which confirms the contents of the statement.

Taken as a whole, she submits that these factors support the admissibility of the statement.

The Taking of the Statement [ 16 ] The following factors were highlighted by Crown counsel: a. the statement was made at police station by an individual who was being investigated for a series of criminal offences and therefore appreciated the seriousness of the situation; b. the statement was made after M.W. was given his right to counsel and was subject to standard police charge and caution; c. the statement was made by an individual who the Crown counsel describes as calm, sober and had a fully operating mind; d. the statement was not the result of any inducements; e. there was no atmosphere of oppression throughout the interview; f. most of the conversation the Crown seeks to admit was on video; g. there was limited leading questions by the police; h. there was no opportunity for collusion between the parties; i. there was no evidence of any motive for M.W. to be dishonest; j. the statement was made after a youth waiver form was completed.

The External Evidence k. the complainant from the October 5, 2009 break-in detailed the manner in which the offence occurred and detailed the items stolen. These items were recovered from the accused, M.W. and others when they were arrested shortly after the break-in. The details of the break-in were consistent with those given in M.W.’s statement; l. the details of the arrest contained in M.W.’s statement were consistent with the evidence of the arresting officers; m. the details of the September 30 th break-ins outlined in M.W.’s statement were unknown to the police at the time of his interview.

Those details, including the items stolen were later confirmed by police and admitted in these proceedings by consent. The Position of Defence Counsel [ 17 ] Defence counsel takes issue with a number of the factors which Crown counsel relies upon to support the voluntariness and therefore the reliability of the statement. He submits that there were significant shortfalls in M.W.’s right to counsel and with police compliance with The Youth Criminal Justice Act (Y.C.J.A.).

He argues that the M.W. was far from being the calm and sober individual described by the Crown, pointing to the portions of the video showing a crying, upset young man who repeatedly asked to speak to his pregnant girlfriend. He takes issue with the suggestion that the accused did not have a motive to be dishonest and takes issue with the suggestion that the police did not offer an inducement to M.W. to make a statement.

Defence counsel argues that the Crown has failed to establish that the police met either their Charter obligations to the accused or their obligations to him under Y.C.J.A. and submits that the statement cannot be admitted if there is evidence of “investigatory misconduct”. He also takes issue with the characterization of the external evidence relied upon by the Crown, arguing that there is no independent evidence supporting the assertion that the accused was involved in the offences.

ANALYSIS OF THE STATEMENT Atmosphere of Interview [ 18 ] It is accepted that M.W.’s statement was given at the police station just shortly after being arrested for break, enter and theft. He was charged and cautioned. The portion of the statement recorded on video does not indicate an oppressive atmosphere or one where leading questions were put to the accused. The officers who questioned M.W. did not raise their voice, did not rush the interview and did not crowd or overpower the accused, either physically or verbally. To the contrary, the tone of the interview was conversational and at

time compassionate. [ 19 ] A significant portion of the conversation was recorded on video and the portions which were recorded in the officer’s notebook and read verbatim into court. There is no evidence to suggest that the atmosphere changed when the accused was not in the interview room. Compliance with Charter Right to Counsel and Y.C.J.A. Waiver Form [ 20 ] At the outset of the interview the accused was charged and cautioned and was asked if he understood his legal rights. He initially declined an opportunity to speak to legal counsel.

It is interesting to note that at a later point in the video, while the officers were out of the room, the accused was talking to himself and indicated his wish to speak to counsel. However that request was not repeated to the officers when they returned to the interview room. What is of concern is the evidence that the M.W. was monitored (both visually and by audio) by another officer throughout the entire time he was in the interview room. I take this to mean that anyone watching the video tape would have heard the accused make comments to himself about his desire to speak to counsel.

However both officers who interviewed him were unaware of these comments. The officer who was assigned to monitor M.W. was not called to testify. [ 21 ] Officers also completed a Y.C.J.A. Youth Waiver form prior to taking the statement from M.W. Defence counsel argues that M.W. was not given an opportunity to exercise his rights under the Y.C.J.A. would add that whether a waiver form was properly completed is a factor to consider in assessing whether an accused understood and had an appropriate opportunity to exercise his right to counsel.

At issue is whether police made a meaningful effort to fulfill M.W.’s request to consult with and have present with him an “adult or other person.” While reviewing his Y.C.J.A. rights, M.W. requested and was allowed to speak to his father. After doing so, he asked to have his Aunt present and he provided officers with her phone number. Officers called the number, but because no one answered they simply left a message. The following exchange occurred when the officers re-entered the interview room. Det Kunderman: Okay. So I phone Rosita. There’s no answer so I left a message.

Is there anybody else you want here instead of her? M.W.: No Det. Kunderman: Just her? M.W. Yeah. [ 22 ] No further contact information was sought and no further efforts were made to contact M.W.’s aunt or to have her present during the interview. It is noteworthy that later in the interview, after M.W. provided police with information about the September 30 th break-ins, he was charged and cautioned again about those offences. Despite the fact that new charges were involved, the police did not complete another youth waiver form.

There was no further reference to M.W.’s request to have his aunt present. [ 23 ] It is clear that M.W. did not waive his right to consult with his aunt and have her present. There is ample case law which recognizes that youthful offenders are susceptible to and may be easily influenced by authority figures. It is accepted that youthful offenders may not appreciate the nature and extent of their rights in the same way as an adult. They are entitled, not just to speak to an adult, but to have one present while speaking to the police.

The efforts made by the police on M.W.’s behalf to contact his aunt fall far short of what is mandated under the Y.C.J.A. The officers were obligated to make a meaningful effort to contact M.W.’s aunt and to stop the interview until those efforts were completed. It is interesting to note that Constable Spruyt testified that if officers feel an accused is not sober, they may allow a period of time to pass before continuing an interview.

There does not appear to be any reason why the same approach could not be taken when it relates to a young person consulting with or having an adult of their choice present during the interview process. [ 24 ] The shortfall in Y.C.J.A. compliance is a factor to consider in assessing M.W.’s right to counsel. It is also to be considered given that, in the absence of the officers, M.W. repeatedly expressed a desire to contact counsel, and told the officers that his father had advised him to speak to counsel.

Crown counsel rightly points out that the test for the admissibility of a statement against an accused is proof beyond a reasonable doubt, whereas the test for threshold reliability is one of a balance of probabilities. It would be incorrect to say that every statement which may be ruled inadmissible as failing to comply with the Y.C.J.A. waiver requirements fails to meet the test of threshold reliability. It is, however, a significant factor for the Court’s consideration. M.W.’s Demeanour [ 25 ] Crown counsel argues that M.W.’s demeanour can be gleaned from a review of the videotape.

She argues that, contrary to M.W.’s viva voce evidence indicating he was under the influence of drugs, the Court should instead accept the evidence of the interviewing officers who did not note any signs of “impairment”. [ 26 ] Defence counsel argues that M.W.’s demeanour is anything but that of a calm sober individual.

In fact, for a significant portion of the interview, M.W. is upset, crying, expressing significant frustration about his life in general, and at one point expresses thoughts of suicide to the officers. [ 27 ] It is difficult for the Court to determine from a simple review of the videotape the veracity of the assertion that M.W. was “sober”. The officers certainly thought he was, and testified as such. Crown points to the fact that M.W. was appropriately responsive to the questions put to him. No evidence was lead by either counsel as to the effect of the drugs M.W. alleges he was taking.

Nor was it suggested to M.W. that he was being dishonest with the Court when he said that he could not remember either the interview or the events in question. At the very least, the Court is left with a videotape of a young man who is clearly upset and crying through a significant portion of the interview. Inducements

[28] It was during the portion of the interview when M.W. first became upset that a request was made to the officers: he wanted tocall his pregnant girlfriend. The officer’s initial response was a general one: “Yeah. You know what? I can’t let you do it right now but Ithink we can arrange something before we’re done? Sound good?” The officers continued to speak, in a supportive way, to M.W., endingthat portion of the interview with an invitation to M.W. to “go for a drive” which he eventually accepted. [29] The request from M.W. was repeated.

Still crying, he expressed concern about being in the Youth Centre “for my baby’spregnancy”. After speaking further with the officer, the following exchange took place: M.W.: (crying) That officer said—that supervisor said I could take you around and take me to go see my girlfriend. Det Kunderman: M, what’s going to happen is we’re going to finish up here. Okay. We’ll go for a drive. And we’ll finish up here. Okay.And then we’ll see about seeing your girlfriend. Okay. I don’t think that’ll be an issue.

I don’t see what the problem would be there.Okay. [30] The officers testified that after the “ride around” where M.W. pointed out the residences which formed the basis of the September 30th charges, they returned and continued the interview on video. After finalizing the interview and processing M.W., he wastransported to the Public Safety Building and later to the Manitoba Youth Centre.

On the way to the Public Safety Building, officersstopped at M.W.’s girlfriend’s residence, where she was allowed into the back of the cruiser car for a private visit with the accused.While officers acknowledged this type of accommodation was a rare occurrence, they denied that it was arranged in order to induceM.W. to make a statement. [31] Given his purported lack of recollection of the events, there is no evidence from M.W. as to whether he was actually induced toparticipate in the “ride around” and to provide the information which followed.

Therefore the actions of the police must be scrutinized onan objective basis, and as such they are troubling. It is unclear who the “supervisor” was that M.W. initially referenced as approving ofthe plan for a visit with his girlfriend. The details and circumstances surrounding that initial exchange with the “supervisor” were notprovided. While the officers acknowledged that they discussed the possibility of such a visit with M.W., both testified that they did notintend their comments to be an inducement.

However, the rationale provided by the officers as to why they allowed the visit, which theyacknowledged to be a rare occurrence, was less than satisfactory. The onus is on Crown counsel to call evidence which establishes, on abalance of probabilities, that the statement made by M.W. was not obtained as a result of an inducement offered by police. The evidenceon this point does not discharge that onus. [32] Defence counsel argues that the actions of the police amounts to “investigatory misconduct” and should, on its own, cause theCourt to conclude that the statement is not reliable.

In Khelowan (supra) the Court recognized concerns related to statements which werethe product of improper police conduct, referencing the comments of Lamer, C.J. in U. (F.J.) (SCC); [1995] 3 S.C.R.764 at para 49: I would also highlight here the proviso I specified in B. (K.G.) that the trial judge must be satisfied on the balance of probabilities thatthe statement was not the product of coercion of any form, whether involving threats, promises, excessively leading questions by theinvestigator or other person in a position of authority, or other forms of investigatory misconduct. [33] While the conduct of the police may not amount to the type of “investigatory misconduct” contemplated by Lamer C.J. asjustifying the outright rejection of an out-of-court statement, the circumstances of the taking of the statement are troubling.

It is thetotality of these circumstances, including the conduct of the police, that must be considered as a whole when assessing thresholdreliability. Motive for Dishonesty [34] Crown counsel argues that there was no motive for M.W. to implicate the accused, his cousin, in these offences. She argues thatthe Court can infer from their relationship that there was no motive for M.W. to lie about the accused being involved. She argues thatM.W. did not try to minimize his own involvement, but simply confirmed the involvement of others. Defence counsel takes to oppositeposition.

He argues that M.W. had ample motive to implicate others and to downplay his own involvement. [35] The difficulty with both positions is that there is no evidence as to the relationship between the accused and M.W., apart fromthe fact that they are described as “cousins.” Simply put, the Court is left without a foundation upon which to assume that M.W. had nomotive to be dishonest as it relates to the involvement of the accused. Subsequent Admission to Offences [36] The Court heard evidence that M.W. had pleaded guilty to a number of counts of break and enter.

Crown counsel initiallyarguing that his admission to the offences at issue in this case is further external evidence upon which the Court could rely. She candidlyacknowledged, however, that there was no evidence before the Court as to the circumstances of the guilty plea. Defence counsel arguedfurther, and I agree, that it is far from clear from the evidence of M.W. as to which if any of these offences he admitted. The evidencerespecting possible guilty pleas by M.W. to these offences falls short of being independent evidence upon which the Court could rely inconsidering the admissibility of the statement.

External Evidence [37] Crown counsel rightly argues that the Court can consider external evidence to determine the reliability of the statement. To that end, she points to the consistencies between the comments of M.W. regarding the way in which the October 5th break in was committed,items that were stolen and the manner of the arrest of the parties. She makes a similar submission regarding the details of the September

30 th break-ins. She points out that the police were unaware of those break-ins until advised by M.W. [ 38 ] The position of defence counsel on this point focuses largely on the portion of the statement that deals with the September 30 th break-ins. He argues that it is false logic to assume that simply because M.W. can confirm the details of a break-in that he committed, the portion of the statement that implicate the accused must be true as well. He points to the fact that there is absolutely no other external evidence confirming the involvement of the accused in these offences.

He also points to the inconsistencies internal to the statement respecting the involvement of the accused. In its totality, defence argues that there is insufficient consistency and detail to the external evidence to support the statement. [ 39 ] It is important, when assessing the argument of defence counsel, not to confuse the issue of ultimate reliability with that of threshold reliability.

It is also important to remember that what is being sought is some external information which can be considered in assessing reliability of the out-of-court statement as a whole. [ 40 ] The details relating to all three break-ins represent some external evidence supporting the suggestion that M.W. had some involvement in the offences. M.W. provides conflicting information about the involvement of the accused, but does eventually implicate him. There is no other external evidence supporting the involvement of the accused.

DOES THE STATEMENT MEET THE TEST OF THRESHOLD RELIABILITY? [ 41 ] The absence of an oath and the inability for meaningful cross-examination has necessitated the forgoing detailed review. The existence of the videotape has assisted in assessing the circumstances surrounding the taking of the statement. While I am satisfied that there was no atmosphere of oppression or aggression while the questions, which were not leading, were put to M.W., I have some significant concerns about the manner in which the statement was obtained. There were concerning shortfalls in ensuring the requirements of the Y.C.J.A . were met.

Proper attention ought to have been paid to M.W.’s request to have his aunt present. This lack of consultation, along with the other evidence outlined above, calls into question whether M.W. properly understood his right to counsel. There are serious concerns relating to the discussion about a visit with his girlfriend, a request which was ultimately fulfilled. Further concerns relate to the lack of evidence as to the relationship between the parties and as to whether M.W. had a motive to lie.

These factors must be carefully considered when assessing a statement which is neither under oath or tested by cross examination. [ 42 ] There is some external evidence confirming some portions of the statement, including some details respecting the break-ins. The details relating to all three break-ins are not to be dismissed lightly. These details confirm that M.W. had specific knowledge related to the commission of the offences.

While not mandatory, it is noteworthy that there is no other external evidence supporting the involvement of the accused. [ 43 ] There is little evidence as to whether the statement resulted in M.W. actually admitting his involvement by way of guilty pleas. There is no other independent evidence implicating the accused in the September 30 th incidents. [ 44 ] Taking into account all of the forgoing, I cannot conclude that on a balance of probabilities that Crown counsel has established that the statement of M.W. possess the requisite degree of threshold reliability so as to be admitted into evidence.

While I recognize that there is some external evidence confirming portions of M.W.’s statement, that information is outweighed by the concerns identified about the then manner in which the statement was obtained, by the fact that the statement was not taken under oath and cannot be tested by cross examination. [ 45 ] The application by the Crown to admit into evidence the statement of M.W. in the trial of the accused is denied. “Original signed by:” HARVIE, P.J.