R. v. Campbell, 2021 MBPC 28

CITATION: R. v. Campbell, Paul, 2021 MBPC 28 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Adam Bergen for the Crown ) - and – ) ) Paul Lee Campbell ) Tara Walker for the Accused ) ) ) Decision on Voir Dire Reasons delivered: ) June 11, 2021 C. Carlson, P.J. INTRODUCTION [ 1 ] Paul Lee Campbell, is charged with a number of offences from June 11, 2020, including firearms offences and aggravated assault on Terrence Sinclair. Mr. Campbell is alleged to have shot Mr.

Sinclair in the head. [ 2 ] The trial began on May 6 and continued on May 11, 17 and 19, 2021. [ 3 ] Three individuals that the Crown planned to call as witnesses did not attend Court to testify. [ 4 ] The Crown made applications to have out of court statements made by those three individuals, Terrence Sinclair, Kiona Sinclair and Mackayla Charlette, admitted into the trial evidence for the truth of their respective contents. [ 5 ] Crown counsel has deferred the application as to Kiona Sinclair’s statement at this time. [ 6 ] Evidence in the voir dire on the applications was called on May 17 and 19, and submissions were made on May 19. [ 7 ] It was agreed by counsel that evidence relative to the taking of the statements, as to police efforts to procure the individuals to attend court, and the statements themselves, would be heard in one voir dire , on the understanding that the applications are separate, and each must be decided separately. [ 8 ] This is the Court’s decision on two of the Crown’s applications, relative to the statements of Terrence Sinclair and Mackayla Charlette.

THE LAW [ 9 ] Each of the out of court statements is presumptively inadmissible because it is hearsay. Hearsay is presumptively inadmissible because without there being an opportunity for cross examination of the declarant at the time the statement is made, it is difficult for the trier of fact to assess its truth and as such, hearsay can threaten the integrity of the trial’s truth seeking process and trial fairness ( R. v.

Bradshaw, 2017 SCC 35 , para. 1 ). [ 10 ] The reasons that out of court statements are presumptively inadmissible are critical for the evidentiary gatekeeper to keep at the forefront of consideration. These reasons are set out in R. v.

Baldree , 2013 SCC 35 , and referenced again in Bradshaw , at para. 20 : 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. [Emphasis in original; para.32.] [ 11 ] Certain exceptions to hearsay being inadmissible have developed in the common law. Such exceptions are based on admitting types of hearsay statements considered necessary and reliable ( Bradshaw , para.22).

Over time, a principled exception developed, which permits hearsay to be admitted into evidence when the party seeking its admission shows the twin criteria of necessity and threshold reliability are met on a balance of probabilities ( R. v. Khelawon , 2006 SCC 57 ). [ 12 ] The statements that are the subject of the applications in this case do not fall within a traditional exception to the hearsay rule. [ 13 ] Therefore, each statement may only be admissible if the Crown satisfies the principled exception criteria. That is, the Crown

must establish, on a balance of probabilities, the twin criteria of necessity and threshold reliability. [14] Even where the twin criteria are satisfied, the trial judge always retains discretion to exclude the statement where the prejudiceoutweighs the probative value. This consideration is critical to ensuring trial fairness. [15] To admit a statement, it must be shown to have been made voluntarily, and not the product of coercion, involving threats,promises, excessively leading questions or other forms of investigatory misconduct (R. v. U.(F.J.) (SCC), 1995CarswellOnt 555 (SCC) at para. 51)).

Neither of the statements are challenged on this basis. [16] Also of course the evidence sought to be admitted must be evidence relevant to the matters in issue. Both statements containobservations about the events of June 11, 2020, including who was present, who was seen with a gun, the firing of shots, and whathappened. The Court is satisfied the content of the statements is relevant.

THE POSITIONS OF THE PARTIES [17] Crown counsel says that necessity and threshold reliability are established to the requisite standard as to each of the statements,and that they should both be admitted into evidence. [18] The accused says that neither necessity nor threshold reliability is established as to either of the statements, and that neither ofthe statements should be admitted into evidence. THE WITNESSES CALLED ON THE APPLICATIONS [19] The Crown called three Winnipeg Police Services (“WPS”) officers to testify on the voir dire, Detective Jamie Young,Detective Logan Binda and Constable Robert Rentz.

The accused did not call any evidence. Detective Young gave evidence as to hisattempts to locate the deponents and compel them to court. The statements of Ms. Charlette and Mr. Sinclair were entered as exhibitsthrough Detective Binda who was present at both interviews. NECESSITY [20] The criterion of necessity is founded on society’s interest in getting at the truth.

Since it is not always possible to meet theoptimal test of contemporaneous cross examination, instead of simply losing the value of certain evidence, in the interests of justice, acourt must consider whether that evidence should nevertheless be admitted in its hearsay form. (Khelawon at para. 49) [21] Necessity arises from the fact that the evidence of a witness is not available, It is a matter of fact for the trial judge to determinethat direct evidence is not available despite reasonable efforts of the party seeking to procure the evidence. [22] Whether necessity will be found in a particular case will be specific to the circumstances of that case.

There are no “pigeonholed” categories of necessity. The criteria of necessity is flexible, but the focus is always on the unavailability of the evidence.Necessity has been found to be met, in certain circumstances, including when a witness is at the time of the hearing, not competent orcompellable or is unable to provide a full and frank account (R. v. Taylor 2015 ONCA 448 at para. 69); when a witness is unavailablebecause of illness, death (as in Khelawon) or is outside the jurisdiction of the court (R. v. K.G.B. (SCC), [1993] 1S.C.R. 740); when the witness has a genuine or feigned loss of memory ( R. v.

Smith (SCC), [1992], 75 C.C.C. (3d) 257(S.C.C.) and KGB); when the witness recants (R. v Burns 2016 SKCA 67 , 2016 337 CCC (3d) 523 (Sask CA); when to testifywould prove highly traumatic to the witness (R. v. Khan, (SCC), [1990] 2 S.C.R. 531); when a witness refuses to adopt aprior statement (K.G.B.) and where the witness refuses to testify (Bradshaw). [23] The factor common to all of these situations, is that there is no option left to the court to get the evidence into the trialevidence, other than admitting the out of court statement.

Neither police, a party, nor the court can do anything further to secure theevidence. Hence, the admission of the evidence becomes “necessary”. [24] In this case, we are dealing with individuals who have not attended court to testify. The Crown says that their evidence istherefore unavailable, despite reasonable efforts to get them to court, and so it is necessary that their out of court statements be admitted. [25] The fact a prospective witness does not attend court to testify, will not alone be enough to make admission of their out of courtstatement necessary.

Necessity may be established if reasonable efforts have been made by the procuring party to obtain the directevidence of the witness in court. [26] There are several authorities that are helpful to consider. They make it clear that whether the necessity requirement will be metdepends on the specific facts and circumstances of each case. Witness served with subpoena does not attend court [27] In the case of R. v. Charles 1997, a domestic assault case, a witness was served with a subpoena but did not attend court totestify.

The Saskatchewan Court of Appeal found the trial judge erred by finding necessity and admitting out of court statements givenby the complainant to police. The Court of Appeal said that the reason for non-attendance of the witness could not be attributed, and thatthe principled exception to the hearsay rule is not founded in expedience or convenience. To find necessity based on the mereunwillingness of the complainant spouse in a domestic matter to testify at trial exceeds its bounds. [28] In R. v.

Atkinson et al, 2018 MBCA 136 , the Crown sought to admit into evidence the audio recording of sworntestimony given by a witness at the preliminary inquiry pursuant to s. 715(1) Criminal Code but also pursuant to the principled approachon the basis the requirements of necessity and reliability had been met. The witness was personally served with a subpoena five and ahalf weeks before trial, but did not attend court on the first day of trial. That day, the trial judge issued a warrant for his arrest. Policewere unable to locate the witness to execute the warrant.

The Court of Appeal agreed with the trial judge that admission of the evidence

was necessary, and said at paragraph 59: “To the extent that necessity plays a role in the manner in which the evidence is brought to the court, in light of Garneau’s non- attendance at the trial, and the inability to locate him, there was no other way that his evidence could have been presented to the court and, therefore, it was reasonably necessary to admit his preliminary inquiry evidence at trial. In my view, the Crown and the police exercised due diligence in locating and serving Garneau with a subpoena sufficiently close to the trial date. His recollection of the event was confirmed.

Contact information was provided to him. A warrant was requested for his arrest when he did not comply with the subpoena. Once it was granted, the warrant was immediately acted upon. In response, Garneau chose not to contact the authorities as requested, disregarded the subpoena and ensured that his whereabouts were unknown”. [ 29 ] In trying to locate the witness to execute the witness warrant, the police officer attended several addresses linked to the witness, and checked his social media account. The witness had an outstanding warrant for serious offences, issued after he was subpoenaed.

Witness not served with subpoena and did not attend court [ 30 ] In R. v. Ajak 2017 MBQB 190 , police tried, but were unable to locate a witness to serve him with a subpoena to testify in a murder trial. The witness had given evidence at the preliminary inquiry, and the Crown sought to have that preliminary inquiry evidence admitted into the trial for its truth. The witness was the subject of an unendorsed warrant, so was liable to arrest if located by police. A “BOLO” (be on the lookout for) alert was issued on the police computer system.

An officer sent a bulletin to the email address of every officer on that police force, with a photo of the witness, his date of birth, and why he was wanted. A photo and description of the witness were published in a local newspaper. Various officers were assigned to search for the witness over a period of several months. This search included surveillance, general patrols and officers attending various addresses the witness had been associated with. The officers spoke with family members and other associated persons to see if they knew where the witness was. Mr.

Justice Toews said at paragraph 12 that: “In this case where the witness has failed to attend another court hearing and a warrant was issued and remains outstanding as a consequence, I can safety infer that on a balance of probabilities, it has been established by the Crown that the witness is refusing to testify by evading service of the subpoena and generally actively attempting to avoid all contact with the police or the courts generally”. [ 31 ] The court held in Ajak , that necessity was established. Has necessity been established in the applications before the Court, or in either of them?

Mackayla Charlette [ 32 ] On April 13, 2021, Ms. Charlette was personally served with a subpoena to attend court, on May 6, 2021 to give evidence in Mr. Campbell’s trial. Crown counsel advised the Court that Ms. Charlette did attend court on May 6. The Crown called a number of other witnesses that day, and Ms. Charlette was not called to testify on May 6. The subpoena lists the scheduled trial dates as May 6, 11, 17 and 19, 2021 and specifies that Ms. Charlette is required to attend all dates of the trial unless otherwise advised by the Crown Attorney. [ 33 ] Ms.

Charlette did not attend court on the next day of trial, May 11. At the Crown’s request, the court issued a witness warrant for Ms. Charlette on the morning of May 11. The next day of trial scheduled after May 11 was May 17. Ms. Charlette did not attend court on May 17. Nor did she attend court on May 19, the fourth day scheduled for trial. [ 34 ] Detective Young testified he became aware on Saturday, May 15 that a witness warrant for Ms. Charlette had been issued on May 11, and that the next day of trial was Monday, May 17. No steps were taken by him or any other officer, until the morning of May 17.

At around 8 a.m. on May 17, Detective Young attended to the address at which Ms. Charlette had been served with the subpoena on April 13, in order to execute the witness warrant. Ms. Charlette was not there. He was not able to execute the warrant. Ms. Charlette did not attend court. [ 35 ] Although there is no evidence that Ms. Charlette knew there was a witness warrant for her, and although the police efforts to execute the warrant were last minute, the bottom line is that Ms. Charlette well knew she had a legal obligation to attend court on all the trial dates.

She had attended the first day in answer to the subpoena. It is a reasonable inference for the court to make, in the circumstances, that Ms. Charlette made a decision to disengage from this matter, and deliberately did not attend court as required. [ 36 ] As in the Atkinson case, Ms. Charlette disregarded her full obligations under the subpoena despite having been served. [ 37 ] In the circumstances, the Court finds the Crown has established on a balance of probabilities that the admission of Ms. Charlette’s out of court statement is necessary. Terrence Sinclair [ 38 ] The first day of trial was May 6.

Detective Jamie Young testified that he was the only officer tasked with locating Terrence Sinclair as a witness for the trial. Commissionaire attempts to locate Mr. Sinclair were not successful. Detective Young’s efforts to locate Mr. Sinclair began on May 5, the day before trial. On May 5, Detective Young did a CPIC check. He learned that Terrence Sinclair has a warrant for arrest, and an outstanding charge for failing to attend court. Detective Young could not say whether the warrant was endorsed or unendorsed. A copy of that warrant issued March 3, 2021 and the certificate for failing to attend court on March

3, 2021, were entered as exhibits. [ 39 ] From the police niche system, on May 5, Detective Young obtained several addresses associated with Terrence Sinclair. Two of them, dating from several years back, indicated Mr. Sinclair “frequented” them. Detective Young attended to both. One of the residences appeared uninhabited. A resident at the other did not know Mr. Sinclair. Detective Young attended to 2-431 Flora Ave., indicated in niche as being Mr. Sinclair’s residence. Based on information received when Detective Young attended there, it seemed clear Mr.

Sinclair no longer lived there, and had not attended there recently. [ 40 ] Detective Young put a BOLO (“be on the lookout for”) out on the police system to flag to all WPS officers that there was a subpoena for Terrence Sinclair, with instructions to contact Major Crimes if Terrence Sinclair’s whereabouts were determined, so the subpoena could be served. Without information as to whether the warrant was endorsed or unendorsed, it cannot be presumed that police could detain Mr. Sinclair if located.

There was no response to the BOLO. [ 41 ] Detective Young confirmed he did not look at any social media, or check to see if there were any family members of Mr. Sinclair’s associated with him and listed on the police system, that he could contact to make inquiries as to Mr. Sinclair’s whereabouts. [ 42 ] Those sum up the police efforts made to find Terrence Sinclair to serve him with a subpoena. Mr. Sinclair was never served with a subpoena to attend court in this matter. [ 43 ] The Crown asks the court to infer from the outstanding warrant and failing to attend court that Mr.

Sinclair clearly was avoiding the police, the courts and the criminal justice system in general and that admission of his out of court statement is therefore “necessary”. [ 44 ] Mr. Sinclair is charged with failing to attend court on March 3, 2021. His first required court attendance after release, listed on the certificate, is June 15, 2020, and thereafter as required by the court. The agreed medical evidence filed in the trial establishes that Mr. Sinclair was in hospital from June 11 to 24, 2020 being treated for the gunshot wound inflicted on him on June 11, 2020.

Absent further information, the Court does not attribute to Mr. Sinclair any sort of deliberate evasion of his court dates. Certainly he was not in a position to attend court on June 15, 2020 as he was in the hospital at that time. There is no information as to whether or not he knew about subsequent court dates, including March 3, 2021, and whether he had a pattern of non-attendance. Certainly he can be taken to know that he has outstanding charges from October, 2019 that he has not dealt with, and certainly it is his obligation to know, and attend, his court dates. It is not known if Mr.

Sinclair knows he has an outstanding warrant. It is not known if Mr. Sinclair knows that Mr. Campbell’s trial began May 6 and is proceeding. [ 45 ] Police started looking for Mr. Sinclair only one day before the first day of trial to serve him with a subpoena. The BOLO was put out one day before the trial began. There is no evidence that police made any efforts to continue looking for him until May 19, the last day of the voir dire . In fact Detective Young was re-called to testify on May 19 about locating Kiona Sinclair and serving her with a subpoena on May 18. Kiona Sinclair is Terrence Sinclair’s sister.

During his evidence on May 19, Detective Young did not advise the Court of any efforts made between May 6 and May 19 to locate Mr. Sinclair. Nor was there any evidence from Detective Young on May 19 that he made inquiries of Kiona Sinclair when he spoke to her on May 18, about her brother’s whereabouts. [ 46 ] The Crown says this is like the Ajak case. In the Court’s view, it is not. The only similarity is that Mr. Sinclair had an outstanding warrant, as did the witness, Mr. Izzard, in Ajak .

In Ajak , that, plus the evidence of the significant efforts that many officers took over several months without finding Mr. Izzard, was enough to ground an inference the witness was avoiding police and court. Based on the evidence before the court in this matter, the Court cannot make the same inference as to Mr. Sinclair. Mr. Sinclair can be taken to know he has outstanding charges. But that is it. The police made minimal effort, over a very limited time, to find him.

While the Court recognizes that it is not reasonable in every case to expect the police resources that were deployed in the Ajak case to be used to locate witnesses, in the Court’s view, the police efforts to try to locate Mr. Sinclair were minimal, last minute, and although there was continuing opportunity to look for Mr. Sinclair from May 6 until May 19, there is no evidence that any efforts whatsoever were made to do so. [ 47 ] Admission of an out of court statement by a witness in the witness’ absence is not a convenience.

It is an exception rather than the rule, for all the reasons that hearsay is presumptively inadmissible. In the circumstances, the Court is not persuaded that Mr. Sinclair’s out of court statement has been shown, on a balance of probabilities, to be necessary. Threshold reliability The Law [ 48 ] If necessity is established, the Court then must decide whether the Crown has proved the threshold reliability of the statement on a balance of probabilities.

That means that, although the evidence is needed, it must not be admissible unless it is sufficiently reliable to overcome the dangers arising from the difficulty of testing it ( Khelawon , at para. 49 ) The Court is not deciding ultimate reliability on the voir dire . The Court is only deciding admissibility. [ 49 ] There is a two prong approach to assessing threshold reliability. Threshold reliability is established through procedural reliability or substantive reliability, or in rare cases, a combination of both. The Supreme Court of Canada set out this two prong approach in Khelawon .

The Manitoba Court of Appeal, in R. v. Hall 2018 CarswellMan 545 at para. 78 , recently confirmed this is still the correct approach to determining threshold reliability. Procedural reliability [ 50 ] Procedureal reliability is established when there are adequate substitutes for testing the truth and accuracy of the evidence, given that the declarant has not stated the evidence in court, under oath and under scrutiny of contemporaneous cross examination ( Bradshaw , para. 27 ) .

In K.G.B. at para. 106 , adequate substitutes were held to be that the statement is made under oath or solemn affirmation after a warning about sanctions; that the statement is videotaped in its entirety; and the opposing party has a full opportunity

to cross examine the witness. Substantive reliability [ 51 ] The second prong is substantive reliability . It is established when the court is satisfied that there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy ( Bradshaw , para. 27 ). [ 52 ] Substantive reliability will be established when the court is satisfied that the statement is so reliable that it is “unlikely to change under cross examination” ( Khelawon , at para. 107 ), and that contemporaneous cross examination of the witness would add little if anything to the process” ( Bradshaw , para. 31 ).

Statement of Mackayla Charlette as to threshold reliability [ 53 ] Mackayla Charlette gave her videotaped statement taken by police on June 11, 2020. Procedural reliability [ 54 ] Ms. Charlette gave her statement under affirmation. She was given a warning about sanctions for giving a false statement. She chose to give a statement. Her statement was videotaped. Ms.

Charlette signed a witness declaration form attesting to those things. [ 55 ] However, this is not like a situation in which a witness testifies at a preliminary hearing for example, and is subject to a full cross examination, and then, when the witness does not attend to trial, the transcript of the witness’ preliminary inquiry evidence, complete with cross examination, is sought to be tendered. Without the opportunity for cross examination, Ms. Charlette’s statement is not procedurally reliable.

Substantive reliability [ 56 ] The Court must consider whether there are “other circumstantial guarantees of reliability” that may suffice to render the statement admissible. All relevant factors must be considered, including the circumstances in which the statement was made and evidence, if any, that corroborates or conflicts with the statement. [ 57 ] As to the circumstances in which the statements were given, it is important to note that Ms.

Charlette was taken directly by police, separate from any other witnesses, from the crime scene to the police station and then interviewed once she had sobered up, after a number of hours. Ms. Charlette did not have a chance to speak with any of the other witnesses or anyone else, although she did say in her statement that she was speaking to Morning Francois through the door of the interview room – it is unknown to what extent they spoke. Ms.

Charlette was not charged with any offence, so she had no reason to deflect any responsibility from herself onto anyone else. [ 58 ] The hearsay dangers referenced in Bradshaw , at paragraph 20 , have to be considered. Did Ms. Charlette misperceive who the shooter was? Did she wrongly remember facts around the shooting? Did she relate her version in an unintentionally misleading manner? Did she knowingly make a false statement? [ 59 ] It is possible that Ms.

Charlette wrongly remembered events around the shooting, and/or that she related her version in an unintentionally misleading manner. [ 60 ] As to potentially wrongly remembering what happened, Ms. Charlette, by her own admission, was very intoxicated at the time of the shooting on June 11 at around 5 or 6 a.m. She gave her statement starting at approximately 4:06 p.m. on June 11. Detective Binda told her that she had been at the station since 8 a.m. that morning, so she had been “sobering up” for 8 hours.

Even by 4:06 p.m., she told the officers interviewing her that she was still a little bit drunk, although she said she was “a hell of a lot sober than I was earlier”. Ms. Charlette’s extreme intoxication may have impacted her ability to tell her version of what happened. She agreed that her recollection of the incident was patchy, that she missed a lot, and that she was probably missing stuff. She stated that when the shooting happened, she was “really intoxicated”. She also stated that she had been doing cocaine with Terrence.

Without an opportunity for full cross examination, the Court cannot know if, and if so, how, her intoxication may have impacted her ability to remember, and the accuracy of, what happened. [ 61 ] As to unintentionally misleading police by her statement, there are in fact, some examples within her statement, of her misstating important facts – that are caught by police –and then corrected by her. There is no basis to think she is knowingly making false assertions, but they are at least unintentionally misleading.

Such examples are: • She says that when the person who had been waving the gun around earlier, returned to the suite, he came right in through the front door and that he was alone. When questioned further by the officer, she admits she did not actually see the person come back. She is assuming he came in the front door, that he was alone, and that it was the same person who had been waving the gun around earlier in the evening. • She said that the person who shot Terrence Sinclair is the same male, who she knew as a friend of Terrence’s, who was waving a gun around earlier.

But, when pressed by the officer, she agrees she did not see who shot Terrence, as she had her back to whoever did the shooting. She did not see the male who had been waving the gun around come back, and by the time Terrence had been shot and she realized it, the person she thinks did the shooting had already left the suite. She agrees it is her assumption it was the person who earlier had the gun that returned to the suite and shot Terrence. • She says she did not hear the door to the room that she and Terrence were in, open, when the person who shot Terrence came in,

and says the door was closed. But when questioned further, she agreed that the room she and Terrence did not have a door, and there was just an opening between the rooms. [ 62 ] When the officer interviewing her put to her what seemed to be obvious inconsistencies or that what she said were observations were actually assumptions, Ms. Charlette readily agreed. The most important is that Ms.

Charlette says it was the friend of Terrence’s who had been in the suite earlier and waving the gun around, that returned and shot Terrence,but, she agrees, after questions from the officer, that she did not see who shot Terrence, and did not see that friend return to the suite. There may be other material details that the officer did not know to ask further questions about. The only way to accurately assess her evidence is after full cross examination. [ 63 ] In assessing proposed corroborative evidence, the Court needs to apply the three Bradshaw rules as referred to by the Manitoba Court of Appeal in Hall .

Is the corroborative evidence relevant to the issue of the truthfulness or accuracy of the material aspects of the hearsay statement? Is the corroborative evidence sufficient? In weighing it against the alternate explanations, is it equally consistent with any of those? If so, it cannot be relied upon. Third, is the corroborative evidence trustworthy, such that it can be relied on? [ 64 ] The Crown seeks to tender the statement for the truth as to who shot Terrence Sinclair. Ms.

Charlette admits in her statement that she does not know who shot him, and only assumes it was Terrence’s friend who she had seen earlier. The material aspects of the statement are really Ms. Charlette’s observations that she saw Terrence’s friend holding a gun earlier in the evening, waving it around without the safety on it, and making comments about it, and that she saw that person shoot the floor with the gun earlier, before Terrence told him to leave. Those are the material aspects because presumably the Crown will be asking the Court, based on Ms.

Charlette’s evidence about those things, in conjunction with other evidence, to make the connection that it was that same person she saw waving the gun around earlier, who shot Terrence Sinclair. [ 65 ] The corroborative evidence the Crown points to and that the Court can consider is the evidence of Morning Francois, another person who was present in the suite throughout the time period in question and at the time of the shooting, the police evidence, and the physical evidence.

The Court cannot consider as corroborative evidence the statement of Terrence Sinclair or Kiona Sinclair since Terrence Sinclair’s statement has been found to not be admissible and since a decision has not yet been made as to the admissibility of Kiona Sinclair’s statement. [ 66 ] There are pieces of corroborative evidence, including the following: • The medical evidence confirms Terrence Sinclair had a gunshot wound in his head. Ms. Charlette says in her statement that he was shot in the head and she saw the bullet in his head. • Both Morning Francois and Ms.

Charlette said that the male waving the gun around (referred to as Paul by Morning Francois and as Terrence’s friend by Ms. Charlette) used the gun to shoot the floor and then was kicked out of the suite by Terrence • Both Morning Francois and Ms. Charlette described the gun they saw in similar detail – black, like sawed off shotgun (according to Ms.Charlette) and like a mini AK (according to Ms.

Francois), with a curved clip. • Morning Francois identified the person named Paul that she referred to in her evidence as the person she had seen with the gun, by photo lineup • At the time Terrence Sinclair was shot, Morning Francois and Ms.

Charlette both agree who was present (both of them, Terrence, Kiona Sinclair). • The report of the gunshot residue expert confirms, having tested swabs taken from the accused on his arrest, from his hands and face, that the accused discharged a firearm, was nearby when a firearm was discharged or handled the firearm. [ 67 ] Certainly the proposed corroborative evidence is relevant to the accuracy and truthfulness of the material aspects of Ms. Charlette’s statement. [ 68 ] Is the proposed corroborative evidence sufficient? Is it equally consistent with alternative explanations? If so, it cannot be relied on. Ms.

Charlette says the shooting was accidental, and that she says that because the person she believes shot Terrence is a friend of his, and that she had not observed Terrence and his friend having any arguments over anything. All of the corroborative evidence could be equally consistent with the shooting being accidental. Cross examination is necessary to explore that. As to whether the proposed corroborative evidence is trustworthy, certainly some of it is – the gunshot residue expert evidence, for example.

But it is as consistent with the accused being in the vicinity of a firearm or handling it, as it is with his discharging it. [ 69 ] Ultimately, to find threshold reliability has been met, the court has to be persuaded that cross examination of the deponent about the matters in issue would add little to the evidence. The Court cannot find that to be the case with Ms. Charlette. It would be dangerous to admit her statement without the opportunity for cross examination. [ 70 ] Accordingly, the Court finds that the statement of Ms.

Charlette has not met threshold reliability on a balance of probabilities. [ 71 ] Further this is not one of the rare cases in which aspects of procedural and substantive reliability combined together are sufficient to meet threshold reliability. [ 72 ] The statement of Ms. Charlette will not be admitted into evidence. [ 73 ] There is no need to consider exclusion due to judicial discretion. Decision on the Voir Dire Applications [ 74 ] As to the statement of Mackayla Charlette, marked as Exhibit V4 in the voir dire , the Court finds necessity is established on a

balance of probabilities, but that threshold reliability is not. The statement will not be admitted. [ 75 ] As to the statement of Terrence Sinclair, marked as Exhibit V3 in the voir dire , the Court finds that necessity is not established on a balance of probabilities. As such, it is not necessary to consider threshold reliability. The statement of Terrence Sinclair will not be admitted into evidence. “Original signed by” C. Carlson P.J.