Her Majesty the Queen - v. -, 2011 SKPC 18

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 018 Date: January 7, 2011 Information: 44302064, 44302065, 44302114 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Lindsay Siemens Appearing: Lynn Hintz For the Crown Kevin Hill For the Accused DECISION ON VOIR DIRE No. 3 D.E. LABACH , J INTRODUCTION [ 1 ] The accused, Lindsay Siemens, is facing a number of drug related charges and other charges, to which he has pled not guilty.

In the course of his trial one of the Crown witnesses gave testimony that contradicted an earlier videotaped statement that witness had given to the police. The Crown made application pursuant to section 9(2) of the Canada Evidence Act to be able to cross-examine

their witness on his prior inconsistent statement. A voir dire was entered into on which the Crown called one witness and the Defence did not call any. After hearing argument from both counsel I rendered an oral decision allowing the Crown to cross-examine their witness on his prior inconsistent statement. [ 2 ] After the Crown had finished examining and cross-examining their witness and Defence had cross-examined him, the Crown made application for this witness’s earlier videotaped statement to be admitted into evidence on the trial proper for the truth of its contents.

As a result, the Court entered into another voir dire on this issue. By agreement of counsel, all evidence heard on the trial and on the previous voir dire was admitted as evidence on this voir dire . The Crown called two witnesses on this voir dire and the Defence called no one. It is on this voir dire that I now render my decision. FACTS [ 3 ] On March 1, 2010, the accused and a number of other individuals, were arrested and charged with a multitude of drug offences as a result of a lengthy drug investigation.

This investigation, code name DECOY, involved a number of police officers including an undercover officer who made a series of purchases of methamphetamine from a number of individuals. The undercover officer never purchased any drugs from the accused however police surveillance showed him meeting with a number of individuals who were targets in the investigation and who were eventually arrested as a result of this investigation. [ 4 ] One of the individuals from whom the undercover officer purchased methamphetamine was Henry Peters. Mr.

Peters was arrested at approximately 8:30 a.m. on March 1, 2010 and taken to the Saskatoon Police Service detention unit. At 8:45 p.m. that same day, Mr. Peters was placed in an interview room at the Saskatoon Police Service where he gave a videotaped statement to Sergeant Pura implicating the accused as a person whom he had purchased or received methamphetamine from. Specifically, he indicated that he had received the drugs that he was arrested with that morning from the accused. [ 5 ] Sometime prior to the accused’s trial, Mr.

Peters plead guilty to a number of drug offences arising out of this undercover investigation and received a sentence of six years incarceration. [ 6 ] On November 17, 2010, the Crown called Mr. Peters as a witness at the accused’s trial. In the course of testifying he was asked where he got the methamphetamine that he had in his possession at the time he was arrested. He responded that he did not know where he got it but he did not get it from the accused. This was contradictory to what he had told Sergeant Pura in his videotaped statement. [ 7 ] The accused’s trial resumed on November 26, 2010 with Mr.

Peters still on the witness stand. When these inconsistencies were pointed out to him, he continued to maintain that he did not get the drugs from the accused but now admitted to getting the drugs from a person by the name of J.D. He later identified J.D. as Jason Draude. Mr. Peters testified that he was lying in his videotaped statement to Sergeant Pura when he identified the accused as the person who had supplied him with the drugs. [ 8 ] It is Mr.

Peters March 1 st , 2010 videotaped statement to Sergeant Pura that the Crown now wishes to have admitted into evidence on the accused’s trial for the truth of its contents. Crown counsel did not argue that the statement could be admitted as a traditional exception to the hearsay rule. Instead, she submitted that the statement was admissible under the principled exception to the hearsay rule. The Defence resisted this application. ANALYSIS [ 9 ] It is trite law that all evidence that is relevant to a case is admissible. However, as with any rule, there are exceptions.

One of the most common exceptions to the aforementioned rule is that oral or written evidence of a person other than the person testifying which is offered to prove the truth of that which is stated, is inadmissible as evidence of any facts stated. This exception is known as the

hearsay rule. See: R. v. Genereux 2008 SKPC 131 (Sask. Prov. Ct.) at para. 17. [10] Hearsay evidence is presumptively inadmissible unless it falls within a traditional exception to the hearsay rule. Even if itdoes not fall within a traditional exception, it may still be admissible under the principled approach, that is, is the hearsay necessary andis it reliable. See: R. v. Mapara, 2005 SCC 23 , [2005] 1 S.C.R. 358 (S.C.C.); R. v.

Khelawon, 2006 SCC 57 , [2006] 2S.C.R. 787 (S.C.C.). [11] The person seeking to adduce the hearsay bears the onus, on a balance of probabilities, of establishing that the hearsay theyseek to have admitted falls within one of the traditional exceptions or can be justified on the principled approach. When proceeding onthis latter basis, Courts should be flexible, taking into account the circumstances of the case and ensuring that the new approach does notbecome a rigid analysis. See: R. v. Khelawon, supra, at paras. 47 and 59; R. v. Henderson, 2008 SKPC 153 (Sask. Prov.Ct.) at para. 17;R. v.

Genereux, supra, at para. 27. [12] In this case, the first question that I must ask is whether the March 1, 2010 videotaped statement of Henry Peters is hearsayevidence. In Khelawon, supra at paragraphs 35 and 56 Madam Justice Charron set forth the defining features of hearsay as being:

(1) An out of court statement adduced to prove the truth of its contents; and

(2) The absence of a contemporaneous opportunity to cross-examine the declarant. Applying these criteria, there is no question that Mr. Peters statement is hearsay. His statement is an out-of-court statement, the Crownis trying to have it entered as evidence for the truth of its contents and the Defence did not have an opportunity to cross-examine Mr.Peters at the time he made this statement to the police. [13] Since it is hearsay, the second question I must ask is on what basis could it be admitted for the truth of its contents. TheCrown did not argue that Mr.

Peters statement was admissible under a traditional exception to the hearsay rule. It was their view that if itwas to be admissible it had to meet the necessity and reliability tests under the principled approach. I agree. [14] In making a determination as to whether hearsay is admissible under the principled approach, a trial judge must considerwhether the evidence is necessary and reliable. In R. v. B.(K.G.), (SCC), [1993] 1 S.C.R. 740 (S.C.C.) at paragraphs105 to 110, Lamer C.J. stated that the necessity criterion is to be given a flexible definition.

It will usually be satisfied by an unavailableor deceased declarant however it can also be satisfied by a witness who recants an earlier statement. This is because necessity is basedon the unavailability of the testimony not of the witness. [15] R. v. B.(K.G.) was a case where three of the accused’s friends told police that the accused had stabbed and killed the victim. At trial, the three recanted their statements to the police. Lamer C.J. spoke about reliability in cases where the witness is recanting. Atparagraph 82 he said: [82] . . .

The reliability concern is sharpened in the case of prior inconsistent statements because the trier of fact is asked to choosebetween two statements from the same witness, as opposed to other forms of hearsay in which only one account from the declarant istendered.

In other words, the focus of the inquiry in the case of prior inconsistent statements is on the comparative reliability of the priorstatement and the testimony offered at trial, and so additional indicia and guarantees of reliability to those outlined in Khan and Smithmust be secured in order to bring the prior statement to a comparable standard of reliability before such statements are admitted assubstantive evidence. [16] He concluded at paragraph 104 that reliability would be satisfied when:

[104] . . . the circumstances in which the prior statement was made provide sufficient guarantees of its trustworthiness with respect to thetwo hearsay dangers a reformed rule can realistically address: if (

i) the statement is made under oath or solemn affirmation following awarning as to the existence of sanctions and the significance of the oath or affirmation, (ii) the statement is videotaped in its entirety, and(iii) the opposing party, whether the Crown or the Defence, has a full opportunity to cross-examine the witness respecting the statement, there will be sufficient circumstantial guarantees of reliability to allowthe jury to make substantive use of the statement.

Alternatively, other circumstantial guarantees of reliability may suffice to render suchstatements substantively admissible, provided that the judge is satisfied that the circumstances provide adequate assurances of reliabilityin place of those which the hearsay rule traditionally requires. [17] If the reliability criterion is met, a trial judge still has discretion to refuse to admit the statement if the statement was notvoluntarily made because to do otherwise would undermine the whole notion of reliability. On this point, Lamer C.J. in R. v.

B.(K.G.),supra at paragraphs 115 and 117 said: [115] However, I would incorporate another aspect of the rule relating to confessions in the voir dire. Even where there has been awarning and oath administered, and the statement videotaped, or sufficient substitutes established, the trial judge will still have thediscretion to refuse to allow the jury to make substantive use of the statement. Prior statements share many characteristics withconfessions, especially where police investigators are involved.

Proponents of the orthodox rule voice the concern that maligninfluences on the witness by police may precede the making of the statement and shape its content, in the same way that confessionsmay be suspect if coerced by police investigators. That is, it still may be the case that the oath and videotape, and the acknowledgementof the warning, were made under circumstances that make them suspect.

For this reason, the test developed by this Court for theadmission of confessions is well-suited to making a threshold determination of whether the circumstances under which the statement wasmade undermine the veracity of the indicia of reliability. . . . [117] I would apply this test to prior statements.

The trial judge must satisfy him or herself (again, in the majority of cases on thebalance of probabilities) on the voir dire that the statement was not the product of coercion of any form, whether it involves threats,promises, excessively leading questions by the investigator or other person in a position of authority, or other forms of investigatorymisconduct. [18] Finally, even if a trial judge is satisfied that the criteria of necessity, reliability and voluntariness have all been met, he muststill ask himself if the probative value of the statement is outweighed by the prejudicial effect.

If so, this would undermine the fairnessof the trial and the trial judge should exercise his discretion and exclude the hearsay. See: R. v. Khelawon, supra at paragraph 49. [19] Applying these principles to the facts of the present case, I have no hesitation finding that the necessity component has beenestablished. Mr. Peters not only recanted on the witness stand the portions of his statement to the police that the accused had suppliedhim with drugs but it appears, that he is recanting most of his videotaped statement.

There is no other source of this evidence besides theaccused and given that he has pled not guilty, I doubt that he would admit that he gave drugs to Mr. Peters. When a witness recants or insome fashion withholds evidence, the prior statement is rendered necessary evidence because evidence of the same quality cannot beobtained from that witness at the trial. It is important that the Court have access to all relevant, important and trustworthy evidence. See: R. v. K. (G.B.), supra; R. v.

Genereux, supra. [20] I am also satisfied that the Crown has established the reliability component on a balance of probabilities. In R. v. Hawkins, (SCC), [1996] 3 S.C.R. 1043, the Supreme Court of Canada said at para. 75: [75] The criterion of reliability is concerned with threshold reliability, not ultimate reliability.

The function of the trial judge is limited todetermining whether the particular hearsay statement exhibits sufficient indicia of reliability so as to afford the trier of fact a satisfactorybasis for evaluating the truth of the statement. . . .The ultimate reliability of the statement, and the weight to be attached to it, remaindeterminations for the trier of fact. [21] In assessing whether Mr.

Peters’ statement meets the test for reliability, I have to be satisfied that there is evidence showingthat sufficient trust can be placed in the truth and the accuracy of the statement because of the way in which it came about or showingthat in the circumstances I will be left in a position to sufficiently assess its worth. See R. v. Genereux, supra, at paragraph 34 and R. v.

Blackman, 2008 SCC 37 , [2008] 2 S.C.R. 298 (S.C.C.) at paragraph 35. [22] The statement in question was made by Mr. Peters some twelve hours after he was arrested. He was placed in an interviewroom at the Saskatoon Police Service headquarters and questioned by Sergeant Astrid Pura. The whole statement was videotaped. In thestatement, Mr. Peters appears to be calm and collected.

He is noticeably disappointed that he has been arrested for these drug offencesand on occasion expresses some frustration that he cannot speak to his brother and that he will not be released from the police station, butwill have to go before a judge to determine if he will be released from custody. It does not appear that he is intoxicated or under theinfluence of drugs at this time. [23] At the outset of his statement, Sergeant Pura asks Henry Peters if he has spoken to a lawyer and he confirms that he hasspoken to Legal Aid and that they gave him “the run down of what was going to happen”.

She advises him that the statement is going tobe video and audio taped for everyone’s protection and then she gives him a secondary police warning which he responds heunderstands. Sergeant Pura did not however administer an oath or solemn affirmation to Mr. Peters nor did she explain the significanceof telling her the truth or that there could be consequences if he lied to her. She then proceeded to ask him questions which he answered. [24] Finally, Mr. Peters is not deceased. He is very much alive and was produced in the trial of the accused as a Crown witness. Iwas advised that a copy of Mr.

Peters videotaped statement as well as a transcript of it were disclosed to Defence counsel for the accusedwell before the accused’s trial date. The Crown thoroughly examined Mr. Peters under oath and cross-examined him with leave of theCourt on his videotaped statement. Defence counsel also had the opportunity to cross-examine Mr. Peters at length on his evidence,including his videotaped statement. [25] It is not my job at this stage to determine whether Mr. Peters was being truthful in his videotaped statement to Sergeant Puraand whether it should be preferred over his testimony in the accused’s trial.

Rather, I am only concerned with whether the circumstancessurrounding the taking of his statement provide circumstantial guarantees of trustworthiness. Despite the fact that Sergeant Pura did nottake the statement under oath nor warn Mr. Peters that there would be repercussions for lying to her, I am satisfied that the statement wastaken under circumstances that point to its trustworthiness. It was videotaped and audiotaped, Mr. Peters was given the opportunity toconsult with counsel prior to the statement and the tone of the interview was cordial. Mr.

Peters demeanour throughout the statement andthe matter-of-fact way he answered the questions led me to the conclusion that he was not intoxicated or high at the time he gave thestatement and he understood what was being asked of him. And, Defence counsel received disclosure of the statement well before trialand had every opportunity to prepare for cross-examination of Mr. Peters and indeed, did significantly cross-examine him on thisstatement.

For all of these reasons, I am satisfied that the criteria of reliability has been met. [26] Even though I am satisfied that the necessity and reliability criteria have been met I must also be satisfied that Mr. Peters gavethis statement voluntarily. I am satisfied it was voluntarily given. A review of the videotaped statement shows that Sergeant Pura madeno threats or promises to Mr. Peters. She does not say or suggest to him that she will release him or drop the charges if he answers herquestions. She uses an appropriate tone of voice with Mr. Peters and he appears willing to answer her questions.

She is not overlypersistent with him. She does not lie to him or attempt to trick him in any way. I see no indication of any investigatory misconduct. [27] Mr. Peters spoke to Legal Aid prior to the statement and despite this discussion, proceeded to answer the officer’s questions. There is no evidence that he wanted to speak to another counsel before she asked him some questions.

Sergeant Pura also gave Mr.Peters a secondary police warning wherein she expressly stated to him: . . . . you must clearly understand that anything said to you previously by another police officer should not influence who, or should notinfluence you or make you feel compelled to say anything at this time. Whatever you felt influenced or compelled to say earlier, you arenow not obliged to repeat nor are you obliged to say anything further, but whatever you do say may be given as evidence, do youunderstand? He acknowledged understanding this but still answered her questions. At no point in time does Mr.

Peters tell the officer that he does notwant to speak to her or that he has been advised by counsel not to say anything. As a result, I conclude that Mr. Peters’ statement toSergeant Pura was voluntarily given. [28] Finally, if trial fairness would be compromised by admitting Mr. Peters’ statement for the truth of its contents then I canexclude the statement notwithstanding that the tests of necessity, reliability and voluntariness have been met. I am not of this mind. Theprejudicial effect of the statement does not outweigh its probative value. The Crown’s case against the accused is, for the most part,

circumstantial. Mr. Peters’ statement, if I was to decide that it was true, is direct evidence of the accused’s involvement in trafficking methamphetamine to or with Mr. Peters. While I have not determined whether I accept what he said in his statement or whether I accept what he testified to in this trial, the statement is significant to society’s interest in getting at the truth and was sufficiently tested in cross- examination by both Defence and Crown, albeit not contemporaneously to it being made, to overcome any danger in admitting it.

CONCLUSION [ 29 ] I am satisfied on a balance of probabilities, that Henry Peters March 1 st , 2010 videotaped statement entered as exhibit P-41 on this voir dire can be admitted as a full exhibit on the trial proper for the truth of its contents. What reliance I place on this statement in deciding the issues in this case, if any, remains to be determined once I have heard the entirety of the evidence. __________________________ D.E. Labach, J