R. v. Olsen and Johnson Date:, 2010 BCPC 420

Citation: R. v. Olsen and Johnson Date: 20101210 2010 BCPC 0420 File No: 56110-3-C Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. PAUL GORDON OLSEN GORDON SIDNEY JOHNSON RULING ON VOIR DIRE OF THE HONOURABLE JUDGE J.W. JARDINE Counsel for the Crown: H. Waldock, J. Beeny Counsel for the Defendant, P. Olsen : P. McMurray Counsel for the Defendant, G. Johnson: G. Gill Place of Hearing: Chilliwack , B.C.

Dates of Hearing: December 7-10, 2010 Date of Judgment: December 10, 2010 [ 1 ] THE COURT: These are my oral reasons related to the admissibility of the statement proffered by the Crown, Exhibit 2 on the voir dire , which is a hearsay statement made by Mr. Martin on a previous occasion, not on oath, to an officer in authority, on February 28th, 2009. HISTO RY AND BACKGROUND: [ 2 ] The statement was taken February the 28th, 2009 immediately after Mr. Martin had been detained and arrested at 46334 Maple Avenue in Chilliwack, British Columbia. The evidence clearly disclosed that Mr.

Martin was one of a number of persons taken from that address when police entered it and when they also utilized police dogs to have people removed from the residence following a 911 call from a civilian witness who lived a short distance away. [ 3 ] The events occurred here in Chilliwack. Following his transport to the Chilliwack detachment jail, he was taken directly to an interview room and Exhibit 2 in the voir dire as reflected by the DVD is the statement taken from that interview. Exhibit 2A is the transcript I used for note-taking purposes. It is not evidence for the truth of its contents.

In fact, it is not the most accurate of transcripts and has not been carefully edited or prepared. There are words missing. There are words mistyped. For instance, the word "are" a-r-e, should be "our" in one passage and there are words clearly intelligible which are not contained within the contents of the transcript. [ 4 ] During the course of the voir dire Mr. Martin testified; therefore, as the declarant he has been present in court and subject to cross-examination. [ 5 ] In his testimony Mr.

Martin testified that he has no memory of the events of February the 27th or February the 28th, 2009, nor of the fact that he was interviewed. He also asserted that watching the interview did not in any way permit him to refresh his memory or to recall the events. He acknowledged that it was he who was on the screen as presented in the videotaped interview. But he said that watching it did not in any way restore his memory. He simply does not remember those days he said because he was on the back end of a four-day party involving quantities of different drugs and alcohol.

[ 6 ] It is also pertinent to these reasons that Mr. Martin did not adopt his statement as the truth. The closest he came to adopting the statement as the truth was his response in cross-examination to Mr. McMurray, "I don't usually lie." He was at the time of that answer responding to the insinuation from Mr. McMurray that as an addict, trafficker and unsavoury character, he was not friendly to the police and that he was lying to the police in this interview. Mr.

Martin on the memory point testified that his first recall following those days is of his friends treating him for injuries to his face and mouth. [ 7 ] In the context of that background, the Crown seeks to introduce the videotaped interview of Mr. Martin on the principled approach to the exception against the inadmissibility of hearsay evidence. ISSUES:

(1) Is the statement hearsay ? [ 8 ] It clearly is.

(2) Is the statement necessary ? [ 9 ] Well, it certainly is for the Crown's purposes in this case. The question is whether it is necessary in the legal sense.

(3) Is the statement reliable in the sense that there are sufficient guarantees of its being trustworthy such that it meets the test of threshold admissibility ?

THE EVIDENCE: [ 10 ] In considering the admissibility of this hearsay statement, I have considered the testimony of Constable Steven Huff, Theresa Ann Visser, Corporal Curtis Bosnell, Roberta Maureen Drake, Constable Keith Wilson, Constable Krista Pike, Sergeant Roberta Drake, David Martin, Susan Somerville, Tamara O'Dea and the admission with respect to the firearm related to Sergeant Preston's evidence taken October the 8th, 2009. [ 11 ] I have also considered the preliminary exhibits, Exhibits 1, 2, 3 and 4, as well as the exhibits tendered in the voir dire .

Particularly, I have utilized my notes of the review from the watching of the videotaped statement, using the transcript for note-taking purposes. [ 12 ] There were some significant features in the transcript evidence, Exhibit A in the preliminary inquiry proper. For instance, in the transcript at page 13 line 14 to page 14 line 9, Ms. Visser outlined her observations of three persons in the early morning hours of February the 28th, 2009. In particular, her descriptions of two persons in dark-coloured clothing and one, a larger person in white clothing, must be considered from a circumstantial perspective.

In addition, at page 14, she had those three persons entering into 46334 Maple Street, Chilliwack, British Columbia. [ 13 ] At pages 13 to 14 she made reference to a yell for help. At page 25 in response to a question in cross-examination from then counsel Mr. Tarnow, her answer was, "I heard the yell for help." Ms. Visser's evidence must be looked at in the light of Corporal Bosnell, who upon entry into the house made reference to the appearances of a number of persons as they left. For instance, Mr. Martin crawled on his hands and knees out of the house into the waiting arms of the arresting officers.

He also described Mr. Olsen in a white track suit. He described Mr. Johnson in his dark-coloured clothing and he described the differences in stature of those persons as he made observation of them in the early morning hours. [ 14 ] Sergeant Drake, as to relevant evidence, made reference to her receiving an unloaded sawed-off shotgun that had come from Constable Wilson.

The shotgun having been found by Constable Huff, had been provided to Constable Wilson and then went to Sergeant Drake. [ 15 ] Constable Wilson made reference to three persons with whom he came into contact, one being Lindsay Vecchio, another being Delores Sawyer, the third being Paul Olsen.

He took possession of the sawed-off 12 gauge shotgun from Constable Huff. [ 16 ] Krista Pike searched Delores Sawyer, Susan Somerville, Tamara O'Dea and Lindsay Vecchio, all of whom had been inside that address and were brought outside during the course of the police attendance. [ 17 ] Constable Huff took custody, in effect, of Mr. Martin, placed him in the rear of his police vehicle, transported him to the station, noted on his person a welt, a swollen bruise on the left side of his face, as well as blood. EHS attended. Mr. Martin refused to go to a hospital and he was provided with bandages.

Constable Huff took Mr. Martin straight to the detachment and straight to an interview room following his detention and arrest. THE APPLICABLE LAW: [ 18 ] I am indebted to counsel for full argument in this matter. They have also provided me with a number of the authorities. A prior statement of a witness available at a trial or preliminary inquiry may be ruled admissible for a truth purpose if the conditions precedent for its admission as a principled exception to the general rule against admissibility of hearsay is proven on the balance of probabilities.

Such a statement may be admissible for a truth purpose even if not adopted by the witness.

The onus is on the party tendering the evidence to establish on the balance of probabilities that there is a sufficient circumstantial basis for the threshold reliability of such a statement. [ 19 ] Factors may include, inclusively and not exhaustively, the following: A statement made on oath or affirmation; A statement which has been reduced to writing following oath and affirmation; A statement made in circumstances where there has been a warning of criminal sanctions for the making of false statements, either perjury or public mischief; Guarantees as to the actual words received by the recipient of the statement, whether there was contemporaneous cross-examination at the time of the taking of the statement or whether

the declarant or recipient are available at the time of the tendering of the statement at the trial or preliminary inquiry; And the generalcatch-all aspect, whether there are other circumstantial evidential guarantees of trustworthiness established by the testimony of otherwitnesses or by exhibits or confirmation of the contents of the statement provided by testimony which is accepted. [20] In my view, the law following Khelawon - and I will deal with Khelawon at length - has changed such that the statement is itselfcapable of being used as a means of assessing the reliability or credibility of the statement provided.

In that regard, it is clear from thelaw that the statement must not be the result of investigatory misconduct, either in the form of improper inducements, coercion, a leadinginterrogation or promises made of benefits or rewards at the making of a statement to provide a person in authority with what the personin authority clearly has asked be provided. [21] The gatekeeper function of the trial or preliminary inquiry judge involves an assessment of the timing of the making of thestatement, the demeanour of the declarant and of the recipient, the sobriety of the declarant as to whether or not the brain is actuallyconnected to the words uttered, the affect of the declarant and the contents of the statement.

The question which might be asked is, Wasit a result of prompting or was it elicited by leading questions? What was the awareness level of the declarant at the time of the makingof the statement? [22] Another factor which needs to be assessed is whether, having regard to all of the circumstances, the hearsay dangers aresufficiently minimized so as to render the statement admissible as reliable on a threshold basis, as distinct from ultimate reliability. Theanalysis may become circular if one is not careful. [23] Counsel provided four authorities.

I have considered, in addition to those authorities, a number of other decisions in the SupremeCourt of Canada. Counsel provided R. v. U.(F.J.), (SCC), [1995] 3 S.C.R. 764, a decision in the Supreme Court ofCanada by Chief Justice Lamer in which there was reference to, amongst others, R. v. Evans, (SCC), [1993] 3 S.C.R.653, (S.C.C.), R. v. B.(K.G.), (SCC), [1993] 1 S.C.R. 740, (S.C.C.). I was also provided with R. v. Khelawon, 2006SCC 57 , [2006] 2 S.C.R. 787, and its modification and limiting of R. v. Starr, 2000 SCC 40 , [2000] 2 S.C.R. 144,(S.C.C.). The subsequent decision in R. v.

Blackman, 2008 SCC 37 , [2008] 2 S.C.R. 298, (S.C.C.), which was a statementmade to her mother prior to the death of the declarant. I have considered, as well, R. v. Woodard, [2009] M.B.C.A. 42 (Man. C.A.) (Ihave been provided with the citation.) The parallel citations include 2009 MBCA 42 , [2009] 12 W.W.R. 78, as well as,245 C.C.C. (3d) 522, and 67 C.R. (6th) 152. [24] I will deal with the cases and the aspect of counsel's arguments in order to properly reflect my assessment of their submissions. [25] Counsel for the Crown relied upon, extensively, U.(F.J.).

It is significant to note that that case is a recantation case, so there aresomewhat different facts than the case at bar, which is an "I simply don't remember" set of facts. At paragraph 19 Chief Justice Lamercommenced the analysis, making reference to the principled exception to hearsay cases and the permissible uses of witnesses' priorinconsistent statements, where the witness is not the accused and is available for cross-examination.

It is significant that the ChiefJustice was setting out not only at paragraph 19 the analysis, but as well restating the orthodox rule regarding prior inconsistentstatements at paragraph 22. I will not quote it at length, but it is clear that prior inconsistent statements are only admissible to impeachcredibility unless there is another aspect to them. [26] The flexibility of the principled exception to hearsay is addressed at paragraph 23 in this sense.

He said: In addition to impeaching credibility, under the orthodox rule a prior inconsistent statement can be used if the fact that it was made hassome probative value in and of itself. This "non-hearsay" use of what would otherwise be hearsay was considered at length in R. v.

Evans, (SCC), [1993] 3S.C.R. 653. (emphasis added) [27] That is not the foundation for the Crown's tendering the statement in the case at bar, nor is K.G.B. the rationale for theadmissibility of the interview in this case. [28] The Crown submitted that the facts in this case are significantly similar - I am not using the word strikingly similar - because ofparagraph 24 of the Chief Justice's ruling.

He said, and I quote: The Crown in this case did not assert that the daughter's statement was admissible for the truth of its contents on the basis of the B.(K.G.) modification to the orthodox rule, which I will discuss below. Accordingly, the case was argued in this Court, as in the courtbelow, under the orthodox rule. The Crown took the position that the trial judge's instruction to the jury to compare the daughter'sstatement to the accused's did not require that the daughter's statement be true.

The fact that the daughter made a statement with certainstriking similarities to her father's admission was asserted to be probative on the issue of whether his statement was true, regardless ofwhether her statement was true. This reasoning was accepted by the majority of the Court of Appeal... [29] It is on that basis that this case is to be distinguished from the case at bar. In F.J.U. the daughter recanted.

It was the fact of theearlier statement which was being used and the comparison of each of the statements which was being used for the purposes ofdetermining whether the statement made by the father was true. Its utilization was therefore done on the basis of the striking similaritiesbetween the two statements. That is completely different from the characterization by the Crown of the similarities between thestatements of Martin and Somerville. Accordingly, I find F.J.U. to be of little assistance in my analysis here.

In fact if one is looking atthe hearsay dangers articulated in paragraphs 30 and 32, F.J.U. would militate against admission in the case at bar. [30] I turn next to Khelawon (supra). What is particularly significant in Khelawon is that Madam Justice Charron for the court iswriting and restricting the earlier decision in Starr, citation given. She said at paragraph 3: and 4: [3] The distinction between threshold and ultimate reliability reflects the important difference between admission and reliance.

Admissibility is determined by the trial judge based on the governing rules of evidence. Whether the evidence is relied upon to decide the issues in the case is a matter reserved for the ultimate trier of fact to decide in the context of the entirety of the evidence. The failure to respect this distinction would not only result in the undue prolongation of admissibility hearings, it would distort the fact-finding process. In determining the question of threshold reliability, the trial judge must be mindful that hearsay evidence is presumptively inadmissible.

The trial judge's function is to guard against the admission of hearsay evidence which is unnecessary in the context of the issue to be decided, or the reliability of which is neither readily apparent from the trustworthiness of its contents, nor capable of being meaningfully tested by the ultimate trier of fact. In the context of a criminal case, the accused's inability to test the evidence may impact on the fairness of the trial, thereby giving the rule a constitutional dimension.

Concerns over trial fairness not only permeate the decision on admissibility, but also inform the residual discretion of the trial judge to exclude the evidence even if necessity and reliability can be shown.

As in all cases, the trial judge has the discretion to exclude admissible evidence where its prejudicial effect is out of proportion to its probative value. [ 31 ] That is particularly significant where you are dealing with trial judges in cases such as Khelawon where you have a jury and where you have five statements from elderly people, several of whom have passed away and are no longer available for cross- examination and where the very foundation of the case rested on those.

It is significant to look at the Ontario Court of Appeal decision in Khelawon and the fact that four of the statements were ruled unreliable and effectively those counts were dealt with by the Court of Appeal and the fact that the Supreme Court of Canada was dealing only with the fifth and what I will call the final conviction or the last count of conviction. [ 32 ] Paragraph 4: As I will explain, I have concluded that the factors to be considered on the admissibility inquiry cannot be categorized in terms of threshold and ultimate reliability.

Comments to the contrary in previous decisions of this Court should no longer be followed. Rather, all relevant factors should be considered including, in appropriate cases, the presence of supporting or contradictory evidence.

In each case, the scope of the inquiry must be tailored to the particular dangers presented by the evidence and limited to determining the evidentiary question of admissibility. [ 33 ] So instead of Starr restricting the inquiry, in Khelawon the court has said no, you have to look at it in the light of all of the evidence tendered, not only in the voir dire but the evidence tendered in the trial proper. [ 34 ] In Khelawon , at paragraph 102 , Madam Justice Charron goes through a roadmap for trial judges in such cases.

She commenced with stating the bald proposition of law that hearsay statements are presumptively inadmissible. She said, at paragraph 102: Mr. Skupien's hearsay statements were presumptively inadmissible. None of the traditional hearsay exceptions could assist the Crown in proving its case. The evidence could only be admitted under the principled exception to the hearsay rule. [ 35 ] That is exactly where I am today. [ 36 ] At paragraph 104, necessity was clearly established in Khelawon because the witness had died before the trial.

Therefore, there was no opportunity on the Khelawon facts for contemporaneous cross-examination. Nor had there been an opportunity for cross- examination at any other hearing. Although Mr. Skupien was elderly and frail at the time he made the allegations, there is no evidence that the Crown attempted to preserve his evidence by application under ss. 709 to 714 of the Criminal Code . He did not testify at the preliminary hearing. [ 37 ] It is clear from paragraph 104 in Khelawon that Madam Justice Charron and the other Justices found that necessity was clearly conceded and had been conceded by counsel in argument.

She then restated the test for admissibility at paragraph 105.

She said: The evidence is not admissible unless there is a sufficient substitute basis for testing the evidence or the contents of the statement are sufficiently trustworthy. [ 38 ] The distinction to be drawn between Hawkins , the previous decision of the Supreme Court of Canada in a circumstance where a person had become incompetent by marrying the accused, and the B.(K.G.) situation where there was the presence of an oath in a video coupled with the availability of the declarant at trial although the declarant was recanting, was drawn at paragraph 106: There are no adequate substitutes here for testing the evidence.

There is the police video -- nothing more. The principled exception to the hearsay rule does not provide a vehicle for founding a conviction on the basis of a police statement, videotaped or otherwise, without more. In order to meet the reliability requirement in this case, the Crown could only rely on the inherent trustworthiness of the statement. [ 39 ] There were no other extrinsic factors brought to the court's attention on the record which could justify a finding of reliability.

It is on that basis and the possibility of a motive created by a disgruntled employee being present during interview and prior, speaking to Mr. Skupien, which highlights the foundation of the non-acceptance of the evidence by the court and the finding at paragraph 109 that the evidence did not meet the reliability requirement. [ 40 ] I accept the Khelawon decision as a guide for me in my assessment of the evidence in this case. [ 41 ] R. v. Blackman also contains a number of paragraphs which assist in the analysis. Blackman again is Madam Justice Charron in 2008.

At paragraph 33 of Blackman , Justice Charron said with respect to Ellison's statements, that because Ellison could not be cross- examined on what he told his mother about who had shot him because he had passed away, they could only be admitted if they fell within one of the recognized exceptions to the rule against hearsay. She ruled at paragraph 33: It is undisputed that the proposed evidence does not fall under any of the traditional exceptions to the hearsay rule and that its admission

is dependent upon the Crown establishing the twin criteria of reliability and necessity on a balance of probabilities. [42] This was a trial conducted by the late Mr. Justice Campbell of the Supreme Court of Ontario, one of our strongest criminalpractitioners. Justice Campbell had ruled a number of statements inadmissible on the same day that he ruled in the statement made byEllison to his mother.

There was much argument as to whether or not he had misstated the test and Madam Justice Charron dealt withthat during the course of her reasons. [43] At paragraph 35 in the terms of the admissibility in Blackman she said: The central underlying concern about the hearsay form of the proposed evidence is the inability to cross-examine Mr. Ellison on the truthand accuracy of his statements to his mother. The trial judge's role as gatekeeper is to determine whether this concern is sufficientlyovercome in the circumstances of the case to justify receiving the evidence.

This criterion is usually met by showing that sufficient trustcan be put in the truth and accuracy of the statements because of the way in which they came about, or by showing that in thecircumstances the ultimate trier of fact will be in a position to sufficiently assess their worth. The two ways of demonstrating thresholdreliability are not mutually exclusive. [44] The test applied.

She said at paragraph 37: The disagreement between the majority and the dissent arises from the trial judge's repeated assertion during his oral ruling on the voirdire that there was nothing "inherently unreliable" about the evidence. Because hearsay statements are presumptively inadmissible, whathe should have asked is whether there was anything inherently reliable about the alleged statements that would warrant their admission. Mr. Blackman argues that this language shows that the trial judge applied the wrong legal test and effectively reversed the onus.

Themajority was satisfied that, while the trial judge "misspoke", it was clear from a reading of the ruling as a whole that he ultimatelyapplied the proper legal test (paras. 50-51). Simmons J.A., in dissent, was of the view that the trial judge's reasons did not demonstratethat he subsequently applied the proper test. (emphasis added) [45] She then reasserted the test. [38] It is important that the trial judge start from the premise that hearsay statements are presumptively inadmissible and then search forindicia of trustworthiness sufficient to displace the general exclusionary rule.

Otherwise, the trial judge risks falling into error byreversing the onus. Indeed, the majority of this Court concluded that such an error was effectively committed by the trial judge in R. v.Couture, [2007] 2 S.C.R. 517, 2007 SCC 28, at para. 85. [46] And then she adopted the position taken by the majority in the Ontario Court of Appeal. She said: In the present case, however, I agree with the majority in the court below.

Although the comments about there being nothing "inherentlyunreliable" about the statements are cause for concern, these concerns are sufficiently alleviated when the comments are read in context. [47] I will keep those remarks in mind when I assess the statement here. [48] I am also driven to make reference to, and I will not quote them at length, but the analysis outlined by Justice Charron in terms ofthe Ontario Court of Appeal decision in R. v. Humaid, [2006] 12287(Ontario Court of Appeal), (ON CA),[2006] 208 C.C.C. (3d) 43 Ontario Court of Appeal at paragraph 50 to 51.

In Humaid it was Justice Doherty writing for the court whodealt with the arguments and labelled a number of factors. It is significant, however, that Justice Doherty was labouring under the Starrrestrictions in his analysis in Humaid. However, if you look at paragraph 50 in Blackman, Justice Charron makes this finding: However, the second reason given by Doherty J.A. for finding that issues concerning the recipient's credibility did not go to the questionof threshold reliability is based, not on an arbitrary categorization of factors, but on principle.

The fact that the recipient is available tobe cross-examined does address "the particular dangers arising from the hearsay nature of the statement and the available means, if any,of overcoming them." Therefore, I conclude that the trial judge was correct in finding that the difficulties with Ms. Freckleton's evidencewere matters properly left to the ultimate trier of fact, as the Court of Appeal did in Humaid, because Ms. Freckleton was available to becross-examined at trial.

The triers of fact were therefore in a position to fully assess the truthfulness and accuracy of her testimony. [49] In that regard, what she is dealing with is the use to which an out-of-court statement can be made, and particularly the attack onthe credibility of the witness, given that the declarant is available for cross-examination before the trier of fact. [50] In this instance, I pause to note that we have Mr. Martin having testified not only here, but having also testified at a previouspreliminary inquiry and having been cross-examined there. [51] I am further guided by R. v. Woodard, [2009] Man.

C.A. (Chartier J.A.). The court in that case adopted much of the analysis towhich I have referred in Blackman and in Khelawon. A list was provided which is particularly helpful at page 11 of 17 and at paragraph46 of Blackman. There is a list of some ten factors, and I will start with number 6 because the issue of necessity is one which is really aquestion of fact to be determined in the particular instance of each case.

He said: The criterion of threshold reliability is about ensuring the integrity of the trial process and is usually met: (1) by showing that sufficienttrust can be put in the truth and accuracy of the statements because of the way in which they came about; or (2) by showing that, in thecircumstances, the ultimate trier of fact will be in a position to sufficiently assess their worth. The two ways of demonstrating thresholdreliability are not mutually exclusive.

In cases where the declarant is available to be cross-examined, the focus will necessarily be on thelatter way (see Khelawon, at paras. 49, 61-63, Couture, at para. 80, Devine, at para. 23, and Blackman, at para. 35). [52] Item 7:

A distinction must be made between "ultimate reliability" and "threshold reliability." Only the latter is inquired into on the admissibility voir dire . The failure to respect this distinction would not only result in the undue prolongation of admissibility hearings, it would distort the fact-finding process.

Whether the evidence is relied upon to decide the issues in the case is a matter reserved for the ultimate trier of fact to decide in the context of the entirety of the evidence ( see Khelawon , at paras. 3, 50 ). [ 53 ] [8] Relevant factors to be considered cannot invariably be categorized as relating either to threshold or ultimate reliability.

Rather, the relevance of any particular factor will depend on the particular dangers arising from the hearsay nature of the statement and the available means, if any, of overcoming them ( see Khelawon , at para. 55 ). [ 54 ] [9] Although there are no hard and fast rules about the manner of conducting the hearsay admissibility inquiry, there are good reasons to look first at whether there are adequate substitutes that give the trier of fact a sufficient basis to assess the statement's truth and accuracy.

Whenever the threshold reliability requirement is met on this basis, there is no need to inquire further into the likely truth of the statement ( see Couture , at paras. 87-88 ). [ 55 ] And the ultimate aspect is that there is still a discretion left. [ 56 ] From those cases, I am satisfied that the following factors emerge: (1) a statement may be hearsay, even though the out-of-court statement was made by a witness at trial. The essential defining feature is whether or not the statement is being provided for the purposes of having the court find it to be true and to rely upon it in the ultimate test.

In that way, it is different from the use of a prior statement for credibility purposes where the statement does not become an exhibit in the proceedings. The traditional hearsay dangers justify the inadmissibility of hearsay evidence being tendered for a truth purpose include the absence of an oath, the absence of cross- examination contemporaneous with the statement, as well as a circumstance where there is a total lack of extrinsic evidence for the trier of fact to ultimately determine the question of the credibility of what was said by the declarant.

Where there is evidence of necessity and aspects of trustworthiness which outweigh the hearsay dangers, hearsay evidence may be admissible as a principled exception to the general exclusion of hearsay evidence. But in order to do that, the proffering party must prove on the balance of probabilities, one, that the statement is necessary and, two, that there are factors guaranteeing trustworthiness (although those words were criticized by Justice Sopinka in Hawkins ).

I do not know how else to put it but that there is evidence going to reliability and that is a similar use of language to factors guaranteeing trustworthiness. It is a semantic difference. [ 57 ]

(2) There are circumstances where what a witness has said to a third party is not hearsay evidence, but is nevertheless inadmissible because it is self-serving or superfluous evidence unless the fact of those words being uttered are used for some other trial purpose. Ms. Somerville's evidence is of that nature here, because Ms. Somerville's statement given to Constable Berry is a prior statement, the only admissibility of Ms. Somerville's statement in the case at bar is to be determined in assessing the reliability of the statement of Martin. The fact that she has made a statement is significant.

It is the fact that the statement was made and what words she uttered for the purposes of comparison with Martin which is of probative value in this voir dire , not whether or not what she said was the truth. [ 58 ]

(3) The principled exception applies only to hearsay evidence that would otherwise be admissible through the direct testimony of the declarant - so opinion evidence, bad character evidence otherwise inadmissible, evidence of matters irrelevant to the proceedings, matters unduly prejudicial to the proceedings and items of that sort cannot be found to be admissible because they are not relevant in the general sense.

It is on that basis that the residual discretion to exclude the hearsay utterance (even if it meets tests of reasonable necessity and reliability) remains, where its probative value would be slight, and undue prejudice would result to the party objecting to its admissibility. [ 59 ]

(4) The court, in looking at the test of threshold reliability is limited to an examination of the surrounding circumstances of the hearsay statement to determine whether there are sufficient guarantees of trustworthiness to counteract the traditional hearsay dangers. The aspects of weight, and probative value, are relevant to the residual discretion but not to threshold admissibility. [ 60 ]

(5) In limited circumstances, the utterance may be admissible even if the declarant is available to testify where the court determines that the declarant is unable to remember or where the court finds it is reasonably necessary to admit the utterance based on its reliability. This is particularly the finding in Khan . It is more difficult in a circumstance such as the case at bar where we are dealing with an adult and the question is whether his recall is so addled by the extent of his drug abuse that he has no recall. But the fact that he is available to be cross-examined will provide the trier of fact with a means of assessing his believability on those points. [ 61 ]

(6) The presence or absence of a motive to lie is a relevant consideration in assessing whether in the circumstances the statements provide sufficient comfort in and of themselves in their truth and accuracy to warrant admission. Motive is one factor to consider in determining threshold reliability. The focus of the admissibility inquiry must be not the presence or absence of motive, but the particular dangers arising from the hearsay nature of the evidence and whether or not there are motives to fabricate, deceive or lie. [ 62 ]

(7) Difficulties with the recipient's evidence are matters properly left to the ultimate trier of fact if the recipient is available to be cross-examined at trial. Aspects of sobriety go to weight. They do not go as much to admissibility unless it can be demonstrated that the person's brain was not functioning in terms of what was said at the time the words were uttered. [ 63 ]

(8) The court is to take a functional approach and focus on the particular dangers raised by the hearsay evidence in the instant case and to look to all of the other extrinsic evidence to determine whether or not the hearsay utterance is relevant, sufficiently reliable and may be assessed by the ultimate triers of fact. In this way, items such as a strong similarity between statements from different witnesses may provide sufficient cogency to warrant the admission of hearsay evidence in an appropriate case.

The fact that the witnesses are unsavoury may nonetheless provide confirmatory evidence of the reliability if the statements are strongly similar and there is no evidence of collusion. Similarly, they may be borne out by confirmatory evidence from other evidence which is accepted. [ 64 ]

(9) Necessity cannot be equated with the unavailability of a witness, rather it must be shown that the hearsay statement is the only available means of putting the evidence before the court. The question is not whether the evidence is unavailable, but whether the witness is capable of articulating the evidence and whether the witness can be questioned such that the ultimate trier of fact can make an assessment of the credibility of that witness. In that way, the test is not sufficient credibility so much as whether the accuracy and

truthfulness of the declarant's statement can be assessed having regard to the usual testimonial factors involving memory, perception, sincerity, ability to articulate the evidence and whether or not the person was sufficiently present at the time to have made the observations, stored them in memory, capable of recalling them and articulating them, either at the time of the making of the hearsay statement, or at the time of testimony in the proceedings. [ 65 ] It must be remembered, and I will utilize this as part of my assessment, that circumstantial guarantees of trustworthiness are sometimes much more useful in assessing whether evidence is reliable in the sense of it being true and accurate than assertions baldly stated by a person.

So as part of my assessment, I am to look to whether there is confirmatory evidence or other evidence which would assist in the assessment.

As part of the analysis I must also consider whether there are factors such as the possibility of mistake, the presence or absence of a motive to lie, the mental capacity of the declarant, the declarant's ability to perceive, recall and recount accurately and whether or not there are other factors, the presence or absence of which, will enable the trier of fact to determine whether the evidence is reliable, or unreliable in the ultimate sense. [ 66 ] I will keep those factors in mind as I turn to my assessment of the evidence in this case. [ 67 ] I am of the view that based on the confirmatory evidence of a number of witnesses that those portions of the DVD, Exhibit 2, that are confirmed by confirmatory evidence, or real observations of other witnesses should be admitted in the preliminary inquiry due to their threshold reliability.

A close examination of Exhibit 2 disclosed that there are contents of the interview which included conversations about matters irrelevant to these counts within this Information and those contents should be edited accordingly. In addition, there are references to other criminal acts and matters which need to be edited from the contents of this statement.

That may not be the case at a preliminary inquiry where you are sitting with a judge alone and I can disabuse my mind of those aspects for the purposes of argument, but it is something which should be addressed on the record at this hearing. [ 68 ] In that regard, I am going to at the conclusion of my reasons ask counsel to discuss the editing for the purposes of the preliminary inquiry. In Exhibit 2 it is clear that there is a reference to a firearm at page 3. At page 4 there are references to injury.

At page 9 there are references to Cook Street; at page 13 references to Maple Street; pages 14 and 15 there is the reference to Mr. Johnson, Ms. Gill's client, and his roles. It is significant that his actions seem to bring him within only Count 4 and - now I have got to be careful about that - and not to Count 3.

There is at page 16 references which could be considered having regard to the evidence of Somerville and O'Dea. [ 69 ] In my view, despite the absence of oath or affirmation there are within the contents of Exhibit 2 appropriate substitutes provided by the following: (1) the attitude and demeanour of Mr.

Martin, the declarant witness; (2) the short time between his detention and arrest and the interview with Constable Huff; (3) the fresh injuries consistent with the beating alleged; (4) the treatment of the injuries by Emergency Health Services personnel; (5) the solemnity of the interview and the content of the statement reflect the declarant witness appreciated the importance of telling the truth; (6) the external evidence of the police witnesses, independent witnesses and the unsavoury witnesses which cumulatively confirm in a material aspect the threshold reliability of the assertions made by him during the course of the interview. [ 70 ] On the issue of necessity, I am mindful of the evidence of Ms.

Somerville which cuts both ways: (1) it would seem to militate against his ability to recall because he was so intoxicated and drugged that he did not recognize her and he was fall-down -- I hesitated to use the word "drunk". He was in a fall-down condition due to the ingestion of a cocktail of illicit substances. [ 71 ] But I am satisfied that the finding of the firearm in the premises, combined with the testimony of O'Dea and Somerville, the observations of injury immediately at the time and the treatment by ambulance attendants, coupled with the Cook Street observations related by Ms.

Somerville and the independent evidence of Theresa Visser of the occurrences in the early morning hours on Maple Street and her calling of the police and her observations of the clothing worn by the males involved and the finding that there is only three males in the residence when the police attend, as well as the observations of Ms. Visser which are confirmatory of the evidence at pages 14 and 15 relating to Mr. Johnson's involvement, as well as the evidence of Ms. Somerville and Ms.

O'Dea as to page 16, are further factors going to demonstrate that there is a threshold reliability of trustworthiness in the statements made. [ 72 ] As to the issue of necessity, having regard to the analysis in R. v. Khan and the references in Khelawon , as well as Blackman , I am of the view that necessity has been made out by the testimony of Mr. Martin. [ 73 ] As to whether or not a jury or a judge sitting alone would ultimately believe him is a far different question. Were I trial judge, I would have grave difficulty in his assertion that he remembers nothing.

But that is not the test for me here. [ 74 ] For those reasons, I am of the view that Exhibit 2 properly edited may form part of the evidence in this preliminary inquiry. (ORAL RULING CONCLUDED)