R. v. Caron, 2019 BCPC 173

Citation: R. v. Caron 2019 BCPC 173 Date: 20190617 File No: 52919-1 Registry: [Omitted for publication] IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOSEPH VANCE CARON

Section 486.4(1) - An order may be made in cases involving sexual offences to ban publication, broadcast or transmission of any information that could identify a complainant or witness .

Section 517 - An order bans publication of the evidence and information given to the court during a bail hearing as well as the reasons given by the judge until the accused is discharged or, if ordered to stand trial, the trial has ended. (When the application is made by the accused the order must be granted by the court but the order is discretionary when sought by the Crown.) RULING ON VOIR DIRE OF THE HONOURABLE JUDGE R. HEWSON Counsel for the Crown: N. Flanagan Counsel for the Defendant: J. Avis Place of Hearing: [Omitted for publication], B.C.

Dates of Hearing: May 27, 28 and 31, 2019 Date of Ruling: June 17, 2019 [ 1 ] Joseph Vance Caron is charged with sexually assaulting H.H. (“Ms. H.”) contrary to

section 271 of the Criminal Code , and with attempting to choke or strangle Ms. H. with intent to enable himself to commit the indictable offence of sexual assault, contrary to

section 246 (

a) of the Criminal Code . The offences are alleged to have been committed on September 18, 2013. [ 2 ] Mr. Caron elected to have his trial in the Supreme Court. His preliminary inquiry proceeded in the provincial court on May 27,

28 and 31, 2019. In the course of his preliminary inquiry, the Crown requested a voir dire to determine the admissibility of three hearsaystatements. [3] The three statements are: 1. A 20-minute audiotaped statement by H.H., on September 19, 2013. 2. A 45-minute videotaped statement by H.H., on September 26, 2013. 3. A one hour and 20-minute videotaped statement by F.W., on March 6, 2019. [4] This is the ruling on that voir dire. [5] Mr. Caron made a number of admissions that expedited the voir dire.

One of them was that the hearsay met the criteria ofnecessity. [6] Necessity is one of the two criteria for the admissibility of hearsay under the principled approach. Ms. H. suffers fromschizophrenia, and has been committed to the Forensic Psychiatric Hospital since October 2013. Because of her mental health, she isunavailable to testify. Mr. W. resides in Nanaimo, and is dying of cancer. He is also unavailable to testify. For the purposes of this voirdire, Mr.

Caron has conceded that the Crown can establish that the criteria of necessity has been met. [7] The second criteria for the admissibility of hearsay under the principled approach is threshold reliability. That issue will be thefocus of these reasons. BACKGROUND [8] H.H. was 25 years old on [omitted for publication]. Her medical history is extremely sad. It was summarized in a letterprepared by Dr. Paul Dagg. According to Dr. Dagg, in 2003, when she was 15 years old, Ms. H. was diagnosed with paranoidschizophrenia and hospitalized for the first time.

A combination of drugs allowed her to attain a moderate degree of stability, but at age16 she stopped taking the drugs and her condition deteriorated rapidly. In 2006, she was charged with assault but found unfit to standtrial. Her disposition was referred to the review board. She was at a series of mental health facilities, before achieving some degree ofimprovement and being discharged to the community in 2009. In 2010 and 2011 she was readmitted to hospital several times, with staysof up to two months each time.

In 2012 there is a gap in her medical records, but in 2013 she was admitted to hospital about half a dozentimes prior to the incident before the court. The last period during which she was admitted to hospital prior to the incident was fromSeptember 9 until September 13, 2013. [9] Dr. Dagg testified on the voir dire as an expert witness. He explained that Ms. H.’s history is one of acting out violently whenexperiencing symptoms of schizophrenia. Her delusions caused her to think that people around her were witches or goths and she wouldassault them in self-defence. Her delusions were usually persistent. Dr.

Dagg had reviewed his notes and could find no indication thatMs. H. suffered from rape delusions. [10] Dr. Dagg explained that the symptoms of schizophrenia can fluctuate. People may return to periods of full functioning, during arelapse of their illness. He said that her Psychiatric Discharge

Summary dated September 13, 2013, noted her “schizophrenia has notbeen particularly disturbing this week and very little evidence of ongoing and persistent psychosis.” [11] M.H., Ms. H.’s mother, testified that when Ms. H. returned home on September 13, 2013, her mental health was relatively good.She kept busy in town, walking her dog or visiting friends. Ms. H. and her mother had long, logical conversations about fashion, a topicin which Ms. H. was interested. She had a curfew of 10:00 p.m. or 10:30 p.m., in order that she take her medication on time.

INCIDENT ON SEPTEMBER 18 [12] Something happened to H.H. on the evening of September 18, 2013. At 11:36 p.m., after the curfew, M.H. received a telephonecall from her daughter. H.H. was gasping for breath and sounded terrified. She gave her mother the address of the place that she was at,and her mother drove and picked her up. It was not far. When she arrived, M.H. noted that her daughter’s sweater was covered in grassand prickles. She thought her daughter had been attacked, and she called 911 immediately.

Constable Beaulieu was dispatched, and metH.H. and her mother at their residence. [13] On the basis of the information in the three statements which the Crown seeks to have admitted as hearsay, the Crown allegesthat before she called her mother on the evening of September 18, 2013, Ms. H. met Mr. Caron in the apartment of Mr. W. Mr. W.believed that Mr. Caron’s interest in Ms. H. was sexual. When Ms. H. decided to leave, Mr. Caron offered to drive her home. They lefttogether on foot. Ms. H. said that they walked into an alley, and Mr. Caron tried to strangle her.

In her second statement, she said, “Ithink he was trying to rape me.” [14] I will expand on the detail of each of the three hearsay statements and the circumstances in which they were made, afterreviewing the law with respect to hearsay. PRINCIPLED EXCEPTION TO THE RULE AGAINST HEARSAY [15] From cases including R. v. Khelawon, 2006 SCC 57 , [2006] 2 SCR 787 and R. v. Bradshaw, 2017 SCC 35 ,[2017] 1 SCR 865, I draw the following principles: 1. Hearsay is a statement adduced to prove the truth of its contents, in the absence of a contemporaneous opportunity to cross-examinethe declarant. (Khelawon, at para 35.)

2. Hearsay is presumptively inadmissible, because of the difficulty of assessing whether it is trustworthy. Fish J. explained the four dangers inherent in hearsay evidence in R. v. Baldree , 2013 SCC 35 at para 32 : First, the declarant may have misperceived the facts to which the hearsay statement relates; second, even if correctly perceived, the relevant facts may have been wrongly remembered ; third, the declarant may have narrated the relevant facts in an unintentionally misleading manner ; and finally, the declarant may have knowingly made a false assertion .

The opportunity to fully probe these potential sources of error arises only if the declarant is present in court and subject to cross-examination. ( Bradshaw , at para 20 . Emphasis in original.) 3. In addition to the traditional exceptions to the rule against hearsay, hearsay can be admitted into evidence when the party tendering it demonstrates that the twin criteria of necessity and threshold reliability are met on a balance of probabilities. ( Bradshaw , at para 23 .) 4.

The criteria of necessity has been conceded in the case at bar. (In other cases, it has been established when the declarant’s evidence is unavailable due to legal or physical incapacity, death, or when the original evidence is unavailable due to a recantation or refusal to testify.) 5. Threshold reliability is distinct from ultimate reliability. In assessing threshold reliability, the question is whether contemporaneous cross-examination of the declarant would add anything to the trial process.

By contrast, in assessing ultimate reliability, the trier of fact determines whether, and to what degree, the statement should be believed and relied on to decide issues in the case. ( Bradshaw , paras 39 to 42 .) 6. The criteria of threshold reliability can be established when there are adequate substitutes for testing the truth and accuracy of the statement (“procedural reliability”), or there are sufficient circumstantial or evidentiary guarantees that the statement is trustworthy (“substantive reliability”). Procedural reliability and substantive reliability can work in tandem with each other.

They are not mutually exclusive. ( Bradshaw , paras 27 and 32 , Khelawon , para 62 and 63 .) 7. Procedural reliability is established when there are adequate substitutes for testing the evidence. Substitutes might include a video recording of the statement, the presence of an oath, and a warning about the consequences of lying. However, some form of cross- examination of the declarant is also usually required. ( Bradshaw , para 28 and Khelawon , para 63 .) 8.

Substantive reliability of a hearsay statement is established when the circumstances in which it was made and any corroborating evidence make the statement inherently trustworthy. ( Bradshaw , para 30 and Khelawon , paras 62 and 94-100 .) 9. To overcome the hearsay dangers and establish substantive reliability, corroborative evidence must show that the material aspects of the statement are unlikely to change under cross-examination.

Corroborative evidence does so if it shows that the only likely explanation for the hearsay statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement. ( Bradshaw , para 47 .) 10.

To determine whether corroborative evidence tends to establish substantive reliability, the court should proceed as follows: a. identify the material aspects of the hearsay statement; b. identify the specific hearsay dangers raised by those aspects; c. based on the circumstances and the dangers identified, consider alternative, even speculative, explanations for the statement; and d. determine whether, in the circumstances of the case, the corroborative evidence rules out these alternative explanations so that the only remaining likely explanation for the statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement. ( Bradshaw , para 57 .) [ 16 ] On the basis of those principles, I will analyse the admissibility of each of the three statements.

THE THREE STATEMENTS [ 17 ] The three statements focus on different parts of the sequence of events on the night of September 18, 2013. The statement that focuses on the earlier events is the statement of F.W., made on March 6, 2019. F.W.’s STATEMENT [ 18 ] F.W. provided a videotaped statement to an RCMP officer in the RCMP’s Nanaimo Detachment. Prior to making the statement, he was warned that the statement would be video recorded and might be entered into court.

He was warned about the consequences of lying, including the possibility of being charged with perjury, obstructing justice or public mischief, and the penalties for those offences.

He swore to tell the truth. [ 19 ] In the statement he said that Mr. Caron was “on a hunt for female companionship” and that Mr. Caron “flat out asked me to use my apartment so he could have some sexual activity with H., in my apartment, in my bedroom.” [ 20 ] Mr. W. told the police officer that he had cancer and had been told that he had six months or less to live. He had refreshed his memory from statements he had made six years earlier, at the time of the incident. He said that he realized that this statement was his part of the judicial system. [ 21 ] Mr. W. was not cross-examined.

The police officer encouraged him to tell his story in his own words and there were few if any leading questions. [ 22 ] While Mr. W. made it apparent that he did not like Mr. Caron, the nature of his statement and his demeanour on the videotape gave little hint of bias or any embellishment of the assertion that Caron had a sexual interest in Ms. H. [ 23 ] Establishing procedural reliability on a balance of probabilities usually calls for some type of cross-examination. In the circumstances of this case, however, I am satisfied that Mr.

W.’s knowledge of his approaching death, coupled with the warnings about the consequences of dishonesty and the setting in which the statement was taken are adequate substitutes for cross-examination to test the accuracy and truthfulness of his statement. [ 24 ] The videotaped statement of F.W. is admissible. H.H.’S FIRST STATEMENT [ 25 ] H.H. made her first statement to Constable Beaulieu in her home, very shortly after the incident occurred. The officer made an audio recording of the statement, but Ms. H. was not placed under oath or warned of the consequences of lying.

The question of threshold reliability will be determined by an analysis of whether or not the circumstances in which the statement was made, and any evidence corroborating the material aspects of the statement, establishes on a balance of probability that the statement is substantively reliable. [ 26 ] When Constable Beaulieu first arrived at the H. residence, Ms. H. asked him, “Are you here to rape my dead body?” The officer could only recall her saying that once. [ 27 ] He asked her about coming back to the detachment with him, but she preferred to stay in her home. [ 28 ] On the audiotaped statement, Ms.

H. described the incident in this way: … I said to F. that I had to go back home and Joe next to me who was kissing me some of the time, we were smoking a little bit of marijuana and he said that he would take me back home in his car so we started walking all over the place, going in different alleys and whatnot, saying oh, I forgot where my car was so I said, okay, let’s find your car and his car was not anywhere near the blue hotel, I don’t even know where it was but he led me down a dark alleyway and started to choke me and bring me down to the ground and start choking me as if he was gonna kill me or something. [ 29 ] Later in the statement, Ms.

H. added more details. She said that she thought Mr. Caron was “kinda hot”, and that her sweater was torn and she suffered the abrasions on her back when he pushed her into a fence. She said that she kicked him in the groin, and ran away. H.H.’S SECOND STATEMENT [ 30 ] After she saw her doctor on September 20, 2013, H.H. went to the police detachment to meet Constable Beaulieu and provided a videotaped statement.

Her second statement was similar in content to her first statement, as the following excerpt demonstrates: Then I told Joe and F. that I wanted to go back home, it was getting late, I went down the stairs with Joe and he brang me to an alley.

He brang me to a few alleys and then he brang me to that, another alley off the blue hotel and when I was walking with him, all of a sudden, he jumped on me and started strangling me and [pause] was choking me on the ground and somehow I got up and kicked him in the balls and then [pause] then he pushed me against the fence which caused the um, scrapes on my back and then I um, ran away from him. [ 31 ] Later in the statement, the following exchange occurred: Q. Alright, so he follows you out cause he wanted to drive you home? A. Yeah, and we were looking for his car.

We could not find it cause you know, he started strangling me. I don’t think he was angry at me, I think he was trying to rape me. Q. [pause] And why do you say that? A. Um, because I know that I did nothing wrong. I didn’t hurt his feelings or anything. So I don’t think he was angry or anything. Q. Okay. Did, did he say something that gave you the impression that he wanted to rape you? A. Um, yeah, with the strangling, yeah. Q. Okay, just with his hands? A. He, he was, he put his hands around my neck and pulled me down to the ground and was trying to strangle me and whatnot.

Q. Okay. [pause] And how long did he have his hands, or his hands around your neck for? A. Probably less than five minutes. [32] The video made it possible to observe Ms. H. while she was making the statement. Ms. H. did not seem upset, nervous orapprehensive. Her affect was childlike. At times, she was preoccupied with a fly in the interview room. She was warned about theimportance of honesty, but not until after she had made the statement excerpted above. CIRCUMSTANCES AND CORROBORATING EVIDENCE [33] M.H. testified that her daughter’s neck was distinctly pink, and puffy shortly after the incident.

She referred to the photographmarked as Exhibit 6. However, Constable Beaulieu testified that he saw no bruising on her neck when he dealt with her, and when Ms. H.was examined by Dr. McClellan on September 20, 2013, the doctor made a note that there were no bruises, no abrasions and no swellingof her neck. [34] Dr. Dagg was qualified to give an opinion regarding the capacity of Ms. H. to understand the concept of telling the truth and hercapacity to communicate evidence. He said that when her schizophrenia was quiescent, Ms. H. did not have difficulty understanding theimportance of telling the truth.

He testified that there was no evidence of active psychosis when she was giving either statement. He saidthat there was no reacting to delusions, no reporting of delusions, no disordered or tangential thoughts, and no evidence of a poverty ofthought. [35] However, Dr. Dagg agreed in cross-examination that the question to Constable Beaulieu, “Are you here to rape my dead body?”could have been a symptom of her schizophrenia. [36] At no time in the first statement did Ms. H. suggest that Mr. Caron was trying to rape her, only that he strangled her.

ANALYSIS [37] The circumstances surrounding the two statements made by H.H. were generally similar to statements taken in the course of atypical sexual assault investigation. Dr. Dagg testified in chief that there was no evidence of active psychosis, and that when herschizophrenia was not affecting her thoughts, she would have no difficulty understanding the importance of telling the truth.Complainants in sexual assault cases are always presumed to be telling the truth, until a reasonable doubt is raised about the accuracy oftheir perception, memory, narration, or sincerity. While Ms.

H. had the capacity to tell the truth, that does not mean that she did. I notethat she initially lied about a peripheral matter, where she had obtained a knife in her possession after the incident. [38] One circumstance, though, is troubling. The question to Constable Beaulieu about raping her dead body raises a concern abouther perception of reality on the night of the incident. Dr.

Dagg agreed in cross-examination that it could have been a symptom of herschizophrenia. [39] Evidence that corroborates the truthfulness or accuracy of the statement might be sufficient to establish substantive reliability.For example, in R. v. Khan, (SCC), [1990] 2 SCR 531 at p. 548, a child's hearsay allegation of sexual assault wasadmitted because it was corroborated by a semen stain on her clothing. [40] In Bradshaw, the Supreme Court of Canada proposed a four-step process for the analysis of whether corroborative evidenceestablishes substantive reliability.

That process was recently cited by our Court of Appeal in R. v. Newsham, 2019 BCCA 126 at para 15. [41] The material aspect of the first statement is the allegation that Mr. Caron strangled her. The material aspects of the secondstatement are the allegations that Mr. Caron strangled her, and that she thought he was trying to rape her. [42] The specific hearsay dangers of both statements are, first, that Ms. H. may have knowingly made a false assertion, or second,that Ms.

H. may have misperceived the reality to which the statements relate, as a result of her schizophrenia. [43] The court is obliged to consider alternative, even speculative, explanations for the statements. Something happened to Ms. H.after she left F.W.’s apartment with Mr. Caron. The abrasions on her back, the tears on her sweater and her state of fear when her motherpicked her up suggest that it was violent. It is possible to speculate about what might have happened in the alley.

The possibilities rangefrom consensual sex and accidental injury, to an attempted robbery, to an attempted strangling and sexual assault. [44] Mr. W.’s admissible evidence of Mr. Caron’s sexual interest in Ms. H. is of limited assistance. Many men may have a sexualinterest in a woman, even an ardent sexual interest, without that interest leading to the crime of sexual assault. Coupled with herattraction to him, it is consistent with the speculative possibility of consensual sex and accidental injury. To conclude otherwise wouldrequire facts about Mr.

Caron’s proclivities that are not before this court on the voir dire. [45] In this case, there is one piece of potentially corroborative evidence that is missing. The investigating police officer did notobserve bruising on her neck. Ms. H. had no bruises, abrasions or swelling on her neck when examined by Dr. McClellan on September20, 2013.

While the time estimate in her claim that he had strangled her for “probably less than five minutes” might reasonably beunderstood to be vague, the degree of violence described in her description of the strangling is inconsistent with the absence of visibleinjury. [46] I am not satisfied that the two statements made by H.H. are marked by such sufficient circumstantial or evidentiary guaranteesof trustworthiness that they can meet the test for substantive reliability. The corroborative evidence does not show, as it must, that thematerial aspects are unlikely to change under cross-examination. [47] I find that Ms.

H.’s two statements are not admissible.

____________________________ The Honourable Judge R. Hewson Provincial Court of British Columbia