R. v. Hubley and Babiy Date:, 2016 BCPC 277

Citation: R. v. Hubley and Babiy Date: 20160902 2016 BCPC 277 File No: 49872 Registry: Vernon IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CHRISTOPHER HUBLEY AND DALE BABIY REASONS ON VOIR DIRE OF THE HONOURABLE JUDGE M. MCKIMM Counsel for the Crown: I. Currie Counsel for the Defendant: (J. O'Quinn for) D. Babiy Counsel for C. Hubley : C. Simmons Place of Hearing: Vernon , B.C. Date of Hearing: August 29, 2016

Date of Judgment: September 2, 2016 Decision on the Voir Dire [ 1 ] The accused are charged in a four count information with assaulting Mr. Roy and causing him bodily harm; robbing Mr. Roy while using a restricted or prohibited firearm; kidnapping Mr. Roy using a firearm with intent to cause Mr. Roy to be confined and possession of heroin and cocaine for the purpose of trafficking. This court is conducting a preliminary inquiry with respect to those charges. Shortly after the primary inquiry commenced a voir dire was declared with respect to the admissibility of four statements made by the alleged victim Mr. Roy.

For the reasons that follow, I agree with crown counsel that all four statements are admissible in the preliminary inquiry. Facts 1 . The Statement to the Ambulance Attendant [ 2 ] On June 18, 2015, the employees of a local manufacturing shop called 911 and requested the assistance of the police and ambulance. In response to that call, Ambulance Attendant Denman attended at the scene. He travelled to the scene in an ordinary fashion, not using lights and siren, and it’s reasonable to assume that he would’ve arrived between 15 and 20 minutes after the dispatch.

When he arrived at the scene he was met by an individual, Mr. Roy, who was dressed in white coveralls walking normally but appeared to be very uncomfortable. There was an evident orange substance on his skin which was clearly causing him some discomfort and was consistent with pepper spray. Mr. Roy identified himself to Mr. Denman as Mattis O’Rauri. [ 3 ] Mr. Denman asked Mr. Roy what happened to which Mr. Roy responded that he had been forced into a motor vehicle by more than one person and driven north of town to an area in the proximity of the manufacturing business. He told Mr.

Denman that at that location he was beaten, stripped of all of his belongings and then pepper sprayed and left on the side of the highway. He further told Mr. Denman that the assailant struck him on the side of the head with a handgun. [ 4 ] Mr. Denman did his best to remove the residual pepper spray from Mr. Roy and transported him to the hospital. This statement to Mr. Denman is the first statement the crown seeks to introduce for the truth of its contents in the preliminary inquiry. 2 .

The statement to Corporal Lescarbeau [ 5 ] Corporal Lescarbeau was the patrol supervisor that evening and was called to the hospital in response to Mr. Roy’s complaints. At the hospital Corporal Lescarbeau was told that the alleged victim was continuing to use a name which the police suspected was false. Their suspicion was based on the fact that the robbery appeared to the police to be a targeted robbery and the name given by the victim did not show up in any PRIME reports. After Corporal Lescarbeau waited for Mr.

Roy to clean off the remnants of the pepper spray and receive treatment he confronted him immediately with his accusation that Mr. Roy was giving the police a false name. Very quickly thereafter Mr. Roy agreed that his name was in fact Matthew Roy. Mr. Roy took the police officer on a drive from the hospital to the area where he alleged he had been beaten and pepper sprayed. When Corporal Lescarbeau arrived at that location he immediately noted tire tracks and a pair of black socks which to him were confirmatory of the allegation of robbery Mr. Roy had so far provided. He secured the scene and returned with Mr.

Roy to the police station. [ 6 ] At the police station, Mr. Roy provided a lengthy statement which lasted one hour and one minute. That statement has been filed and marked exhibit “A” in this voir dire. [ 7 ] At the commencement of the statement Mr. Roy was asked a general narrative question about what had happened that day. Mr. Roy described his activities through the course of the day and then described how he was hitchhiking to the town of Enderby when a blue BMW pulled up. He described the BMW in some detail.

Although he first assumed that the BMW was there to give him a ride in response to his hitchhiking when he arrived at the side of the vehicle, he says that someone opened the rear window and pointed a firearm at him and demanded that he get into the car and if he did not do so he would be shot on the side of the road. [ 8 ] He described in his statement entering the BMW and sitting in the back seat and that an older gentleman sat beside him in the back seat and two other gentleman who are alleged to be the accused in the case at bar occupied the front seat.

Every occupant was wearing some form of face covering from either a bandanna to a complete balaclava. He described being driven to a location and removed from the vehicle and his property taken from him and then he was beaten with fists and struck with a handgun. His clothes were removed and at the end of the beating one of the individuals removed a can of bear spray from the motor vehicle and sprayed him twice with a substantial quantity of bear spray. These individuals then drove off in their motor vehicle. [ 9 ] Mr.

Roy goes on in the statement to describe making his way to the manufacturing facility at which he was found. [ 10 ] The officer questions Mr. Roy for more details and, as a result of that questioning, Mr. Roy produces a series of particular details regarding the events of that evening. [ 11 ] He described that the gun that was used was a 9 mm gun with “Cammo” on the top.

He described the passenger’s gun was much the same end of the same coloring. [ 12 ] He described that the front passenger was wearing Fox brand dirt biking gloves black in colour with hard knuckles. [ 13 ] He provided a lengthy list of all of the items that were taken from him that were contained within his backpack, as well as the clothes that were stripped from him at the time of the assault. In particular, he described that he was deprived of a pair of gold “cammo” Oakley sunglasses, a pair of grey Adidas shoes with red laces and black socks. The backpack also contained his green purse.

[ 14 ] He describes the motor vehicle as a BMW that was abnormally clean and a square body style with chrome rims. [ 15 ] During the course of the statement he identifies both accused persons as the people that beat him and that were the front passenger and driver of the car. [ 16 ] This statement was both audiotaped and videotaped. The videotape revealed that Mr. Roy appeared to be speaking very normally, he appeared relaxed and slouched through the interview, there was no evidence of an agitated emotional state or of intoxication. The tone of the interview was flowing and conversational.

There was no particular evidence of anger or outrage in spite of what I just happen to them. 3 . Statement to Cst. Scott [ 17 ] In response to this complaint the police executed a search warrant and seized a blue BMW from the front of a residence in which both accused were sleeping. The BMW was a blue four-door BMW with silver front rims and black back rims. It was registered to the woman with whom one of the accused was found sleeping when the residence was searched.

Dried blood was observed on the right rear passenger seat, a pair of Oakley sunglasses was also found as well as a can of bear spray under the front passenger seat which appeared to have been recently deployed. [ 18 ] When the police arrived at this residence with the BMW, they noted in plain view a pair of gray Adidas shoes with red laces on the front steps. They also noted on the front steps a light-colored bedsheet which emitted a smell consistent with bear spray. In the search of the residence they found the registration for the BMW, nine cell phones, a large amount of cash and narcotics.

Of significance they also found a pair of black and white gloves with hardened knuckles. They found a backpack consistent with the backpack which Mr. Roy complained had been taken from him during the robbery which contained various items of clothing generally consistent with the types of clothing Mr. Roy complained had been taken from him. [ 19 ] A further found a Glock 17 Jan Four STV109 handgun. That handgun was two tone with the handle and muzzle portion being sandy green and the top portion or rack being black.

The sandy green color of the gun is consistent with the palette of colors found in camouflage apparel or camouflage equipment although I also note that portion of the gun does not contain typical spotted markings generally associated with camouflage gear. [ 20 ] This search took place on June 19, 2015, the day after the robbery. On June 22 nd Constable Scott interviewed Mr. Roy and obtained from him a relatively detailed description of the items that he alleged were taken from during the course of the robbery in particular a description of the contents of the backpack.

This statement was audiotaped but not videotaped 4. Statement to Constable Fredette [ 21 ] Three days later Constable Fredette, an investigator, became aware that Mr. Roy was in custody at the Vernon police detachment charged with an offense of break and enter. Constable Fredette removed him from cells for the purpose of interviewing him with respect to the items seized during the search. During this interview, Mr. Roy was shown a series of photographs of those items which he readily identified.

He also provided a description of the individuals who he say committed the robbery and confirmed that they were the two accused at bar. He signed each of the photographs indicating which items belong to him. [ 22 ] During the statement, Mr. Roy’s affect is dramatically different from the statement taken the early morning hours following the robbery. His appearance is dishevelled and his physique is slouched and drooping. His speech is markedly slurred, often to the point of incomprehensible. The cadence of his speech was slow and appeared forced.

He gave every appearance of being under the influence of narcotics or withdrawing from the influence of narcotics or very ill for some other reason. Surprisingly, the officer testified that as far as he was aware Mr. Roy appeared perfectly sober, however there is no evidence that Constable Fredette had ever experienced Mr.

Roy before such that he would recognize the dramatic difference between his speech and behavior on June 19 th compared to his speech and behavior in custody on June 24. [ 23 ] Constable Fredette ends the statement by purporting to take a statutory declaration that the property in question was Mr. Roy’s as is permitted by the provisions of

section 657.1. Notably, Constable Fredette makes no effort to ensure that Mr. Roy understands the importance of the oath, nor indeed even asks him if he wishes to take an oath. He attaches the nine photographs to the declaration. After completing the oath process he then retires from the room and returns with yet another photograph, this time of Mr. Roy’s Oakley sunglasses. Mr.

Roy acknowledges that the sunglasses in the photograph are his and signs the photograph at which point that photograph is stapled to the already sworn declaration. [ 24 ] The entire process for making that statutory declaration was completely improper. There is no doubt that that declaration would not be or ought not to be admitted standing on its own as a result of the officers complete failure to properly administer the oath as well as his addition following the purported oath taking of new material to the declaration.

In this case, however, the crown is not seeking to tender that declaration pursuant to the provisions of

section 657.1 but rather simply ask that it be admitted as a part of the statement provided by Mr. Roy to Constable Fredette. [ 25 ] Before Constable Fredette spoke to Mr. Roy, an investigation had been undertaken with respect to Mr. Roy’s earlier statement that during the day of June 18 he had been communicating with his relative in Enderby, and had set up a place for him to stay in Enderby. When the police checked with that relative in Enderby that relative gave a very different statement and denied that in fact he been in touch with Mr. Roy at any time on June 18.

Constable Fredette specifically challenged and cross examined Mr. Roy on this significant inconsistency between his first statement and the evidence of his relative. Mr. Roy provided a relatively unsatisfactory explanation for the difference between his statement in the apparent statement of his relative. 5. Subsequent behavior of Mr. Roy

[ 26 ] Mr. Roy was subpoenaed to attend at the preliminary inquiry of this matter originally set for April 19, 2016. He did not attend on that day and the crown applied and was granted a material witness warrant. Given the seriousness of the charges the state opted to turn that warrant into a Canada wide warrant. Through an administrative oversight that Canada wide status was not properly noted on the warrant. [ 27 ] Evidence was led that until early July 2016 little effort was made to execute that warrant until in early July 2016 when a senior investigator at the general investigation

section of the Vernon RCMP became aware that another officer had been looking for Mr. Roy without success in response to an allegation of breach of probation. [ 28 ] At that point inquiries were made with respect to any family or friends who might be able to contact Mr. Roy. Specifically a female companion of Mr. Roy was contacted and she agreed to ask Mr. Roy to contact the officer. In fact Mr. Roy did contact the officer that very evening and advised the officer that he was somewhere in Ontario but would not reveal his address.

Further inquiries were made and it was discovered that the telephone number used by Mr. Roy to contact the police officer was in Hamilton Ontario. At this point the Hamilton, Ontario police were engaged to make efforts to find Mr. Roy but to this point they have been unsuccessful. It was conceded that at one point prior to the officer contacting the Ontario authorities that Mr. Roy had in fact been picked up by the police on unrelated matters but not returned to British Columbia because of the error in failing to enter the notation that the warrant from British Columbia was Canada wide.

The police department in Hamilton, Ontario have searched various homeless facilities looking for Mr. Roy without success. Issue [ 29 ] Are the four statements made by Mr. Roy to the ambulance attendant and the investigating officers admissible at this preliminary inquiry for the truth of their contents? Discussion [ 30 ] The crown relies on the analysis of the Supreme Court of Canada in R. v. Khelawon 2006 SCC 57 in support of their position that all four statements of the accused are admissible under the principled exception to the hearsay rule.

In that case the crown sought to enter the statements of four separate complainants in support of a charge of assault causing bodily harm against the accused. Like the case at bar those statements were made to both treating physicians and investigating officers. In those statements the principal victim, a Mr.

Scupien, described being punched and beaten by the accused and threatened that he did not vacate the senior’s home in which he resided that the accused would kill him. [ 31 ] The court took the opportunity to revisit many of the earlier cases and confirmed that hearsay statements are presumptively inadmissible unless they fall under one of the traditional exceptions to the hearsay rule or under the modern principled exception to the hearsay rule. The principled exception to the hearsay rule applies when the party proffering the evidence can establish that the hearsay is both necessary and reliable.

In this regard the court writes; 42. It has long been recognized that a rigid application of the exclusionary rule would result in the unwarranted loss of much valuable evidence. The hearsay statement, because of the way in which it came about, may be inherently reliable, or there may be sufficient means of testing it despite its hearsay form. Hence, a number of common law exceptions were gradually created. A rigid application of these exceptions, in turn, proved problematic leading to the needless exclusion of evidence in some cases, or its unwarranted admission in others.

Wigmore urged greater flexibility in the application of the rule based on the two guiding principles that underlie the traditional common law exceptions: necessity and reliability [ Wigmore on Evidence (2 nd ed. 1923), vol.III,_1420,at p.153]. This court first accepted this approach in Kahn and later recognized its primacy in Starr . The governing framework, based on Starr, was recently summarized in R. v. Mapara, [2005] 1 S.C.R. 358, 2005 SCC 23 at para 15 : (

a) Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions to the hearsay rule remain presumptively in place. (

b) A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by the principled approach. The exception can be modified as necessary to bring it into compliance. (

c) In “rare cases”, evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case. (

d) If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indeed sufficient reliability and necessity are established on a voir dire . [ 32 ] As in the Khelawon decision in the case at bar we are dealing with the admissibility of evidence under the fourth arm of that test. The onus is on the crown to establish both necessity and reliability on the balance of probabilities. 47. Prior to admitting hearsay statements under the principled exception to the hearsay rule, the judge must determine on a voir dire that necessity and reliability have been established.

The onus is on the person who seeks to reduce the evidence to establish these criteria on the balance of probabilities. Khelawon @ para 47 [ 33 ] The accused argue that the four statements made by Mr. Roy meet neither the test of necessity nor reliability. I shall be with each of them separately.

Necessity [34] Necessity does not mean that the evidence is necessary to prove the crown’s case. The authorities are clear that the introductionof hearsay evidence perverts traditional standards of fact-finding by eliminating the possibility for contemporaneous cross examinationas well as the other frailties enumerated in Khelawon. The crown argues that in this case the failure of Mr. Roy to attend in response tohis subpoena effectively subverts the fact-finding process by precluding the court from having any of his evidence with respect to the matter. As Lamer C.J.C writes in R. v.

Smith (1992) 75 C.C.C. 3RD 257(S.C.C.), The companion criterion of “necessity” refers to the necessity of the hearsay evidence to prove a fact in issue. Thus, in Khan, the infantcomplainant was found by the trial judge not to be competent to testify. In this sense, hearsay evidence of her statements was necessary,in that what she said to her mother could not be adduced through her. It was her inability to testify that governed the situation. The criterion of necessity, however, does not have the sense of “necessary to the prosecution’s case”.

If this were the case,uncorroborated hearsay evidence which satisfy the criterion of reliability would be admissible if uncorroborated, but no longer be“necessary” to the prosecution’s case if corroborated by other independent evidence. Such

interpretation of the criterion of “necessity”and thus produce illogical result that uncorroborated hearsay evidence would be admissible, but could become inadmissible ifcorroborated. This is not what was intended by the court’s decision in Khan. As indicated above, the criterion of necessity must be given a flexible definition, capable of encompassing diverse situations. Whatthese situations will have in common is that the relevant direct evidence is not, for a variety of reasons, available.

Necessity of thisnature may arise in a number of situations. [35] In the case at bar the accused was served with a lawful subpoena compelling his attendance at the preliminary inquiry. Hefailed to respond to that subpoena. A warrant was issued for his arrest. There is no evidence as to why the police did not take an activerole in executing the warrant until early July, two months before the preliminary inquiry was rescheduled. [36] Counsel for the accused point forcefully to this alleged failure of the police to exercise due diligence as a reason why theevidence ought not to be admitted.

They say in effect that the state ought not to be entitled to benefit from their lack of diligence insecuring the best evidence against their client. They take support for this position from Khelawon where the Court writes: However, inan appropriate case, the court in deciding the question of necessity may well question whether the proponent of the evidence made allreasonable efforts to secure the evidence of the declarant in a manner that also preserved the rights of the other party. See also; R. v. Orpin (2002) (ON CA), 165 C.C.C. 3rd 56 (Ont.

C.A.) at para.43-51. [37] In my view this is not a case where the crown has not taken all reasonable efforts to secure the attendance of Mr. Roy. It is notunreasonable to allow a Canada wide warrant to sit and await an individual heavily involved in the drug subculture to cross the path ofpolice either with charges or during the course of their routine duties. I’m also satisfied that the efforts made by the senior investigatorwere also reasonably diligent. [38] The witness is not available for contemporaneous cross examination.

Without the admission of the hearsay statements the trierof fact will be deprived entirely of those facts. In my view the criterion of necessity has been clearly established on these facts. Reliability [39] Even if the hearsay evidence in question is necessary as the only way in which the evidence can be put before the trier of factthe crown must still prove on the balance of probabilities that the evidence is reliable.

Although reliability is a fluid concept whichdefies categorization there are two fundamental principles that must be assessed, the first is whether or not the statement’s reliability canbe assessed by reference to evidence which establishes the truth or accuracy of the contents of the statement and the second is whether ornot the manner in which the statement was taken was such as to obviate the need for contemporaneous cross examination or thatcontained within the statement are the necessary tools for the trier of fact to assess the reliability of the evidence.

Reliability through the corroboration of the statement through the evidence [40] The crown says that these statements are reliable because the contents of the statements can be confirmed, or refuted, byreference to facts which are proven in the evidence. In Khelawon the court writes: When reliability is dependent on the inherenttrustworthiness of the statement the trial judge must inquire into those factors tending to show that the statement is true or not -- recallU.(F.J.) Khelawon at para. 92.

The court specifically embraced an approach that determine reliability based on the existence ofconfirming evidence and in doing so rejected the argument that such an approach was tantamount to bootstrapping on the part of theproponent. Khelawon @ para 98-100. [41] Many of the facts asserted by Mr. Roy in his various statements were borne out by other evidence found during the course of theinvestigation. To name a few: 1. Mr. Roy described being picked up in a dark blue BMW with chrome rims and taken to the scene where he was robbed. A similarBMW was found in the possession of the accused. 2.

He describes the gun as “camouflage” and a 9 mm: the gun found in the house in which the accused were present is, partially, of asandy camouflage color and has the appearance of what would be understood in popular culture as a 9 mm handgun. 3. He describes the sun glasses that were taken from him as being of the camouflage color and the glasses found which he identified inthe subsequent statement are indeed distinctive and have a camouflage look. 4. He describes the assailants as wearing gloves with hardened knuckles and the search of the residence revealed two pairs of gloves

with hardened knuckles. 5. He describes those gloves as black and one of those pairs of gloves was black. 6. He described that he was robbed of his grey Adidas shoes which had red laces and grey Adidas shoes with red laces were found at theresidence occupied by the accused. 7. He describes with accuracy the clothing and possessions of which he was deprived and those clothes and possessions were foundduring the search the residence occupied by the accused. 8.

He describes being attacked and assaulted with bear spray and a can of bear spray, apparently recently discharged, was found thefollowing day in the automobile associated to one of the accused. One of the accused DNA was found on that can of bear spray. [42] There is no question that there are inconsistencies both between the statements made by Mr. Roy and the evidence found aswell as inconsistencies between the statements.

In my view this strengthens the admissibility of the evidence because it is those veryinconsistencies which allow the trier of fact to assess the evidence with respect to its ultimate value and its ultimate reliability. Therewill be instances where the inconsistencies in a statement or between statements of witness are so dramatic that they might exclude acorroborated statement from admissibility, but in this case the inconsistencies are not of that quality.

Reliability determined by the manner in which the statement was taken. [43] There is no question that the statements do not enjoy the hallmarks of reliability which would be available if the officers havefollowed the protocols articulated in R. v. B.(K.G.) (SCC), [1993] 1 S.C.R. 740. In this regard they certainly cannot befaulted as they had no way to know that the witness would subsequently become unavailable. However the enquiry is more functionalthan simply replacing the out of court oath for contemporaneous cross examination.

Rather the court is called upon to examine thecircumstances in which the statement was made and determine on a case by case basis if the circumstances of the taking of the statementare such that the trier of fact can have confidence in the reliability of the statement. 62 One way is to show that there is no real concern about whether the statement is true or not because of the circumstances in whichit came about. Common sense dictates that if we can put sufficient trust in the truth and accuracy of the statement, it should beconsidered by the fact finder regardless of its hearsay form.

Wigmore explained it this way: There are many situations in which it can be easily seen that such a required test [i.e., cross examination] would add little as a security,because its purposes had been already substantially accomplished.

If a statement has been made under such circumstances that even asceptical caution would look upon it as trustworthy [in the ordinary instance], in a high degree of probability, it would be pedantic toinsist on a test whose chief object is already secured [_1420, P. 154] [44] I must consider the circumstances in which the statement is provided but also the manner in which the statement wasconducted.

An excellent synthesis of the many factors that could possibly add to the reliability of the statement are found in McWilliam’s Canadian Criminal Evidence [5th Ed.] at para 7:60.20 and I have considered each of those factors carefully. Applyingsome of those principles to each of those statements I find as follows: a. Statement to the Ambulance Attendant [45] The statement was made shortly after the event. It was made to a medical professional who was seeking information in order toassist the declarant.

The declarant had little opportunity to fabricate given that he had recently been subject to a noxious pepper sprayfrom which he was still suffering side effects. There was no effort on the part of the ambulance attendant to extract information otherthan a general inquiry as to what had caused Mr. Roy’s injuries. While I accept that Mr. Roy clearly was dishonest in the use of a falsename in my view that speaks to its ultimate reliability not its threshold reliability. [46] I’m satisfied the statement meets the test for threshold admissibility. b.

Statement to Corporal Lescarbeau [47] This statement is taken at the police station a few hours after the events in question the statement was audio recorded and videorecorded. From the review of the video recording it is apparent that Mr. Roy is relaxed and conversational. There is no evidence in thestatement of untoward animus towards his assailants. The conversation with the police officer is free-flowing and narrative and not thesubject of extensive questioning or attempts by the officers to extract information. The extent of the questions posed by the officerindeed are simply to direct Mr.

Roy to specific topic areas after which Mr. Roy converses freely about those topics. There is noevidence in the statement that Mr. Roy appears confused, disoriented or contrived. [48] I do note that there are some internal inconsistencies within the statement and certainly there are inconsistencies with otherstatements provided by Mr. Roy. In my view that to goes to the ultimate reliability of the statement for the trier of fact and does notauger against the threshold admissibility test. [49] I’m satisfied this statement meets the test for threshold admissibility. c.

Statement to Constable Scott [50] This brief statement provided to the Constable is essentially just a follow-up to the first statement taken by Cpl. Lescarbeau. The statement was audiotaped and accurately transcribed but not videotaped. From the review of the transcript the statement seemsparticularly innocuous and given that the officer was asking Mr. Roy for a list of the items that were stolen, one perceives little reason tofabricate on Mr. Roy’s part. Mr. Roy’s answers were in response to generic questions and there were certainly no attempt to guide theconversation other than simply to direct Mr.

Roy to particular subjects.

[ 51 ] I’m satisfied this statement meets the test for threshold admissibility. d. Statement to Constable Fredette [ 52 ] This statement was both audiotaped and videotaped. The accused was in custody on charges of break and enter and certainly was not free to leave. The officer was careful to ensure at the commencement of the interview that he was going to speak to him about the issues arising around the robbery that he did not wish to speak to him about the break and enter. There is no suggestion in the statements made by the officer that there was any advantage to be afforded to Mr.

Roy if he answered the officer’s questions one way or another. [ 53 ] The officer testified that in his view Mr. Roy was not under the influence of alcohol or drugs. Having reviewed the videotaped statement made several days earlier after the robbery and Mr. Roy during this interview there is no question that his demeanour, speech and attitude are dramatically different. His speech was slow and slurred and on the verge of being incomprehensible. There are many pauses in his speech. His posture was slouched over and his demeanour was generally lethargic.

He appeared very clearly to either be under the influence of narcotics or withdrawing from the influence of narcotics and it is difficult to imagine that all of that was not patently apparent to Constable Fredette. [ 54 ] In this statement he is challenged more aggressively by the Constable particular with respect to apparent inconsistencies between his earlier statements and evidence garnered from subsequent investigation. In particular the police interviewed the family friend that Mr. Roy alleged he was going to visit at the time that he was kidnapped.

That family friend appears to have denied making any contact with Mr. Fredette that day. [ 55 ] I’ve considered carefully the frailties of this statement and there is no question that given the attitude of Mr.

Roy and the circumstances of the making of the statement the statement is certainly the least likely to be admissible, but considering as I must that this statement is necessary as the only evidence available to the court with respect to its contents and given that the statement in the main is simply a repetition of evidence given to the police in the earlier interviews, in my view the crown has established on the balance of probabilities that this statement meets the test for threshold admissibility. [ 56 ] After careful consideration I’m also satisfied that this statement meets the test for threshold admissibility.

Conclusion [ 57 ] All of the statements advanced by the crown in the voir dire, are admissible in the trial. THE HONOURABLE JUDGE M. MCKIMM