r v. MICHAEL MINES, 2016 QCCQ 9440

R. c. Mines 2016 QCCQ 9440 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF BEDFORD TOWN OF COWANSVILLE No: 455-01-013885-144 455-01-013886-142 DATE: August 4 th , 2016 ______________________________________________________________________ BY THE HONOURABLE ÉRICK VANCHESTEIN, J.C.Q. ______________________________________________________________________ HER MAJESTY, THE QUEEN Prosecutor v.

MICHAEL MINES Defendant ______________________________________________________________________ JUDGMENT ON VOIR-DIRE ______________________________________________________________________ Introduction [ 1 ] The defendant is charged with three counts of trafficking drugs inside the Cowansville Penitentiary Facilities. [ 2 ] The main witness for the Crown is Mrs.

Jacqueline Grenier, the mother of the defendant, who was caught in possession of the drugs. [ 3 ] After her arrest, she made a statement in which she said she had brought the illegal substances at her son’s request because he needed money and she was not able to help him. [ 4 ] At the trial, she repudiates this prior statement and opposed a formal denial about any involvement for her son in the possession of those substances. [ 5 ] After having been authorized to cross-examine her own witness and after this witness was declared adverse, pursuant to section 9(1) of the Canadian Evidence Act , the Crown now seeks to introduce as evidence for its content, the prior statement of Mrs.

Grenier, in accordance with the principle of the Supreme Court of Canada cases, in R. v. B. (K.G.) [1] , also known as KGB. [ 6 ] The Court allows a voir-dire on that matter. [ 7 ] The main question at issue and the only element contested by the defence, is the reliability of the prior inconsistent statement. Relevant evidences The arrest of Mrs. Grenier [ 8 ] Mrs.

Jacqueline Grenier is the mother of the defendant and is well-known at the visitor’s department, at the penitentiary, for visiting her son regularly for the last three years. [ 9 ] This day of May 7 th , 2014, she arrived at the penitentiary in a wheel chair with her ex-husband, Michael Mines, father of the defendant. [ 10 ] After the administrative procedures, prison personnel proceed to search the visitors before they enter into the buffer zone where they wait to be called to meet the inmate.

[ 11 ] The search includes a dog search where the animal reacts to certain specific odours (drugs, firearms, ammunition). [ 12 ] When the dog finds something, it gets excited. Its reaction goes from doing nothing to excitement as it sits in front of the person and waits for his treats. [ 13 ] Sometimes, the dog is in an in-between state that the dog handler calls “interest” to the subject. [ 14 ] In the case of Mrs. Grenier, she arrived in a wheel chair because she said that she had undergone hip surgery. [ 15 ] She was searched at around 1:25 p.m. She did not want to stand up during the dog search.

But after a discussion, she agreed to stand. The dog handler, Pierre Gauthier, noticed that his dog showed great interest in Mrs. Grenier, while it showed no interest for the other visitors who were searched at the same time. [ 16 ] The dog handler had enough information to call for specific observations on Mrs. Grenier during her presence in the visitor’s parlor. [ 17 ] Mrs. Brochu who has been a correctional agent for 23 years, was in the visitor’s

section and she observed Mrs. Grenier who she also met during her presence in the visitor’s parlor. [ 18 ] She observed Mrs. Grenier rushing to the bathroom in her wheel chair, as soon as she arrived in the waiting zone. [ 19 ] Mr. Michael Mesei, the second dog handler on the premises that day, decided to do a tour with his dog in the waiting zone due to the interest noticed towards Mrs. Grenier. [ 20 ] When Mrs. Grenier came out of the bathroom, the dog searched around her and adopted a positive alert. He sat in front of her and put its nose on her front pant pocket. [ 21 ] He asked Mrs.

Brochu to proceed to the search of Mrs. Grenier which she did by showing her hand and asking her to empty her pockets, which Mrs. Grenier did without any problem. [ 22 ] She pulled out of her pocket five pills, four red balloons and two yellow ones, the size of a loony. [ 23 ] Mrs. Brochu could not see what was inside the balloons, because they were very opaque . [ 24 ] She also noticed, on her blue gloves, at the same time that Grenier gave her the balloons, a black hair one inch long that could only be a pubic hair. [ 25 ] At that moment, Mrs. Grenier seemed upset and told Mrs.

Brochu that she only did her job. [ 26 ] After receiving the content of her pocket, Mrs. Brochu escorted Mrs. Grenier into an interview room, while Mr. Mines (the father of the Defendant) was escorted to another room; they were separated. In the custody room, Mrs. Brochu proceeded to a full body search and the result was negative. [ 27 ] She found the balloons and the pills at 1:30 p.m. The version of Mrs. Jacqueline Grenier at trial [ 28 ] Mrs. Grenier explains that she went visiting her son that day with her ex-husband and she was in a wheel chair due to a surgery.

She claimed being on a lot of medication, mainly painkillers. [ 29 ] She went to the bathroom and she saw a crumpled piece of paper in the trashcan with a white paper with names and phone numbers on it (written “1C” and numbers). She could feel what was inside the balloons. She took it because she wanted to bring it out of jail after the visit and selling it, with the help of her husband, who is an addict, to make some money and help her son or her family. [ 30 ] The five pills were in the balloons, so she opened them to verify what it was.

She flushed the paper with the names and the phone numbers. [ 31 ] It never came to her mind that those balloons were vaginal or anal plugs. [ 32 ] She knows that there is a dog search before entering this second room but she did not expect the dog coming out in that

section when she came out of the bathroom, since she never saw dogs there. [ 33 ] She also knew that there is no search when they leave the penitentiary. [ 34 ] On April 27 th , 2015, she pleaded guilty on two counts of trafficking drugs related to this event. She was represented and accompanied by her attorney at that moment, who explained the facts in French. She admitted understanding French and English and her attorney explained to the Court that she understands French very well even though she speaks English.

[ 35 ] Her attorney explains to the Court that they had a lengthy discussion before entering her plea about the facts and the joint submission that would be presented to the judge. [ 36 ] Before accepting the plea, the Court verified it by making sure that Mrs. Grenier was doing it voluntarily, without threats or promises, and telling her that the judge was not compelled to follow the joint submission. She answered “yes” to all the questions. [ 37 ] The facts were that she tried to introduce drugs inside the penitentiary and the quantity was the one detailed in the present case.

She agreed to all the facts. [ 38 ] Today, she mentioned that for her, she was guilty for having kept the drugs and involving her son. [ 39 ] She was sentenced to 10 months of jail for this infraction. [ 40 ] At the trial, the Crown attorney was authorized to examined her witness about her previous statement on the grounds of section 9(2) of the Canadian Evidence Act and later on, she asked the Court to declare this witness an adverse one, pursuant to section 9(1) of the Canadian Evidence Act , to which the Court agreed, giving the Crown permission to cross-examine the witness seriously on her credibility according to this section.

The prior statement and it circumstances [ 41 ] In the penitentiary, after her arrest and her full body search, Mrs. Grenier met Mr. Marc Parizeau who is an “agent de renseignements de sécurité” ( Security Intelligence Officer ). [ 42 ] He is the one who received the call when they found the drugs on Mrs. Grenier. He met her when she was waiting in the room and asked her the usual questions: Why? What is inside? Were you pressured in any way to introduce drugs? And Mrs. Grenier admitted immediately entering the drugs for her son. [ 43 ] She insisted a lot that her ex-spouse (Mr.

Michael Mines) was not involved nor informed of this. [ 44 ] She mentioned, and this is what is written in the notes: “I’m guilty, but Michael has nothing to do with it”. [ 45 ] After her statement, Mr. Parizeau arrested Mrs. Grenier. He read her her rights with a card prepared by the correctional services, stating that she does not have to speak and has the right to remain silent and to contact an attorney, which she did immediately. So she called one of her own choice. [ 46 ] They called the Sûreté du Québec afterwards. Officers Stéphane Bastien and Sylvain Ménard arrived around 3h00 p.m. and met Mrs.

Grenier around 3h08 p.m. in the small room where she was waiting. [ 47 ] It is admitted that the meeting was very polite and that the officers made no threats or promises to Mrs. Grenier. [ 48 ] They noticed that she spoke English but also French and that she, sometimes, switched from one to the other. [ 49 ] Ménard conducted the interview because he spoke English and Bastien was taking notes. [ 50 ] He wrote that Mrs. Grenier was very cooperative, polite and answered spontaneously, sincerely and frankly to the questions. [ 51 ] Officer Ménard explains that when he met Mrs.

Grenier in the room, she was in a wheel chair and he sat down near her at the table. [ 52 ] He started by given her her rights even though he knew that she had already contacted her lawyer but she interrupted him and told him the quantity and nature of the substances. [ 53 ] At that time, he did not even know the nature of the drugs. He only knew that there were some pills and balloons but had no detail. [ 54 ] The interview was mostly done in English but sometimes, Mrs. Grenier spoke in French. It did not last more than 20 minutes. He wrote down the statement she gave him on a

summary form. [ 55 ] There weren’t many questions to ask about the drugs and Mrs. Grenier was willing to give information and he was listening to what she was saying. [ 56 ] She refused to say where the drug came from. But, in the end, after reading her statement out loud, she read it back, said that everything was OK and signed it. [ 57 ] Mr. Ménard explains that he wrote down only the main information about the drugs and did not write everything they discussed. [ 58 ] It is useful to reproduce the statement in question: “What can you tell us about the drug that was found on you?

It was to bring to my son Michael Jr. Maines because he asked me from the drug the last time that I met with him. I think he needed some money because he was asking me some and I couldn’t gave any. I brought them inside me in my vagina. I took them out after the search and the brought another dog and I had the drug inside my pocket of my pant. I came with my ex-husband but he didn’t have to do with it.

I did a stupid a mistake I want to help my son the wrong way to bring some drug, I had 5 speed pills, 4 balloons of 2 grams of hash and 2 balloons with 5 (unreadable) of 0,2 gram.” (exact reproduction) Analysis The relevant principles [ 59 ] The Crown seeks to introduce the prior inconsistent statement as proof of the statements’ contents, which is now known as KGB’s statement. [ 60 ] In The law of Evidence in Canada [2] , the criteria to admit a prior inconsistent statement as proof of its contents are summarized as follows: “16.90 Pursuant to R. v.

B. (K.G.) , certain prerequisites must be met before a prior inconsistent statement can be tendered as proof of its contents. First, the statement itself must have been admissible had it been offered as the witness’ evidence-in-chief: if the witness could not have made the statement in chief due to the operation of evidentiary rules, the statement cannot be “slipped in the back door” through the use of the new governing inconsistent statements. Second, the statement must have been made in circumstances that provide some indicia of the statement’s reliability.

According to Lamer C.J.C. for the majority of the Court in R. v. B. (K.G.) : … the requirement of reliability will be satisfied when the circumstances in which the prior statement was made provide sufficient guarantees if its trustworthiness with respect to the two hearsay dangers a reformed rule can realistically address: if (

i) the statement is made under oath or solemn affirmation following a warning as to the existence of sanctions and the significance of the oath or affirmation, (ii) the statement is videotaped in its entirely, 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 allow the jury to make substantive use of the statement.

Alternatively, other circumstantial guarantees of reliability may suffice to render such statements substantively admissible, provided that the judge is satisfied that the circumstances provide adequate assurances of reliability in place of those which the hearsay rule traditionally requires” Finally, the previous inconsistent statement will be substantively admissible only in cases where the admission of the statement as proof of the truth of its contents is shown to be “necessary”. Based on Lamer, C.J.C.’s decision in R. v.

B. (K.G.) , the criterion of “necessity” would appear to be satisfied in all cases where the prior inconsistent statement differs substantially from the witness’ current testimony, and the witness has failed to provide a suitable explanation for the change in his or her story. The various prerequisites to “substantive admissibility” must be established at a voir dire by the party seeking to use the statement as proof of the statement’s contents.” Application in the present case Necessity [ 61 ] In the present file, the prior statement of the witness is crucial for the Crown’s case.

This is the only evidence existing against the defendant regarding the infractions. [ 62 ] If it was not for Mrs. Grenier’s statement, the Crown would not have been able to press charges against the Defendant. [ 63 ] The version of Mrs.

Grenier at the trial is totally inconsistent with her prior statement and has no air of reality at all. [ 64 ] The fact that she claims having found the drugs in the trashcan, in the visiting room’s bathroom, at the penitentiary, inside the visitor’s zone is a version which came totally out of the blue before the preliminary hearing (October 22 nd , 2015) when she met the officer in charge of the file. [ 65 ] She never mentioned having found that drug when she was met by the correctional agents and police officers on the day of her arrest. [ 66 ] It is clear from the way she testifies that her only goal is to save and protect her son.

She testifies in a mechanical way like a person who recites a story learned by heart. In this situation, the necessity of having this statement for the Crown is obvious. Reliability [ 67 ] At this stage, it is important to remember that the Court does not have to decide the truthfulness of the statement, but only its admissibility into evidence for its content. [ 68 ] The Supreme Court in R. v. B.(K.G.) , exposed three requirements for their reliability which are: • The statement made under oath or solemn affirmation, following a warning;

• Second, it is videotaped in its entirety or the recording of the statement; • Full opportunity to cross-examine the witness respecting the statement. [ 69 ] Later on, the jurisprudence has evolved and a statement could also be admitted if it is not under oath nor recorded. [ 70 ] The important fact is the opportunity for a party to cross-examine the witness respecting his statement. [ 71 ] For a KGB statement, the Supreme Court says that alternatively, when a statement does not meet these three requirements, the Court could examine the circumstances of the statement if they “provide adequate assurances of reliability” [3] . [ 72 ] What are the circumstances of Mrs.

Grenier’s statement? [ 73 ] First, the incriminatory statement met the entire requirement for its admissibility as an accused’s statement because it was made without any promises or threats and she had the opportunity to discuss with an attorney before meeting the SQ officers. [ 74 ] In Mrs. Grenier’s specific situation, she gave, on two occasions, to two different persons, the same statement, saying she brought the drugs for her son. First, when she met Mr.

Parizeau, she said it freely, voluntarily, spontaneously; and after a couple of questions why she was in possession of the drug. [ 75 ] She never mentioned, at that moment, that she had found it in a trashcan, in the bathroom. [ 76 ] Then, when she met the SQ officer, she repeated the exact same simple statement; that she had brought the substances to give to her son. [ 77 ] All the witnesses who were in contact with Mrs. Grenier confirm her attitude when she was arrested at the penitentiary. [ 78 ] Mrs. Brochu mentioned that she seemed upset but very calm and cooperative. [ 79 ] Mr.

Parizeau confirmed that he did not have to ask too many questions before she informed him of the situation. [ 80 ] The defendant’s attorney relies a lot on one of the sentences noted in Mr. Parizeau’s report when she mentioned that she is guilty but Michael has nothing to do with it. [ 81 ] He submits that Michael Mines could be her son not her ex-husband. The Court does not think that the defence is right on that point. [ 82 ] First, Mr. Parizeau explains that she said this sentence in the same way after admitting that the drug was for her son.

And that she insisted a lot that her ex-husband was not informed and that he did know nothing about it. [ 83 ] Furthermore, when we look at the statement she gave to the SQ officer, when she spoke about her son and called him Michael, she used the name Michael Jr. Mines. It is clear for the Court, that when she spoke to Mr. Parizeau, she never exonerated her son but only her ex-husband by using the word “Michael”, “ex-husband” or “the father of her son”. [ 84 ] Although Mrs. Grenier claims that she was panicked, which could be understandable, fearing jail and being medicated.

But there were no objective signs observed by any of the officers who were with her of any perturbation which could affect her mind. [ 85 ] The two SQ officers mentioned that when they met her, she gave Mr. Ménard information he could not have known such as the quantity and the nature of the drugs found in opaque balloons through which it was impossible to see.

Afterwards, the evidence shows that she was accurate on that point. [ 86 ] Again, at no point, to no one, when she had the opportunity to do so, has she said having found these substances in a trashcan, in the bathroom. [ 87 ] The two experienced officers also felt that she was answering spontaneously, sincerely, frankly and that she was telling the truth. [ 88 ] This statement is not a very long and complicated one and the facts are rather simple. [ 89 ] She only raised this new version a year later before the hearing of the preliminary enquiry when she probably realised the harm she had caused her son by giving that statement. [ 90 ] About the wording of the statement, the Court finds it hard to believe that in 2014, experienced officers who met someone for an incriminating statement do not use any means of recording.

They were not with Mrs. Grenier very long and they could have recorded the interview on a cellular phone. [ 91 ] It would have been much easier, would have raised less discussion in Court, if we could have had, in hand, a clear and recorded statement. [ 92 ] Although the Court finds it very regrettable that this practice is still in force, this is not what the Court has to decide. What needs to be decided is if the written

summary statement gives sufficient guarantees to admit its contents. [ 93 ] For the above-mentioned and following reasons, the questions here were quite simple, had no complexity and the answers are clear. The statement contains sufficient usual information for their case: Who? What? Why?

[ 94 ] The officers mentioned that the only thing Mrs. Grenier refuses to tell them is where the drugs came from. But it is very compatible with the fact that she brought it there. [ 95 ] Her explanations are quite simple and there is no need to make it more complex.

She had a short meeting with the officers and they had what was necessary for their case against her, at least. [ 96 ] Furthermore, the Court cannot ignore that she pleaded guilty, while represented by an attorney and admitted the facts that she did enter the drugs in the purposes of trafficking, which is also compatible with her prior statement. [ 97 ] Her post facto denial as mentioned has no air of reality and her version of the facts is totally unrealistic. [ 98 ] For these reasons, the Court believes that Mrs.

Grenier’s statement dated May 7 th , 2014, offers the adequate assurances of its reliability and should be admissible for its content. __________________________________ ÉRICK VANCHESTEIN, j.c.q. Me Valérie Simard-Croteau Attorney for the prosecutor Me Richard Tawil Attorney for the defendant Date of hearing: July 15 th , 2016