R. v. Genaille and Richard, 2022 MBPC 25

CITATION: R. v. Genaille and Richard , 2022 MBPC 25 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) S. Ehrmantraut ) ) ) for the Federal Crown – and – ) ) ) ) A. Wood for the Provincial Crown ) ) Shaylene Genaille ) ) ) L. Tailleur for the Accused – and – ) ) ) Derek Richard ) ) ) ) ) A. Braun for the Accused Reasons for Decision ) Delivered: May 12, 2022 CAWLEY, P.J. INTRODUCTION [ 1 ] In the course of a joint trial, the accused Shaylene Genaille (Genaille) sought to admit as evidence the videotaped statement of her co-accused boyfriend.

This is the voir dire decision concerning her application to admit her co-accused’s hearsay statement for its truth. [ 2 ] Genaille is jointly charged with her boyfriend, Derek Richard (Richard) of possessing cocaine and methamphetamine for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act ( CDSA ).

It is alleged that cocaine, methamphetamine and trafficking paraphernalia were found in their residence during the execution of a search warrant. [ 3 ] After his arrest, Richard provided a twenty-minute video statement to the police denying Genaille’s involvement stating, “Shaylene and the kids have nothing to do with what is going on there.” He claimed Genaille did not want him selling drugs. He told the police the drugs did not belong to Genaille but he did not say who was responsible.

The Crown did not seek to tender these comments at trial. [ 4 ] Genaille applies to have Richard’s video statement admitted for its truth pursuant to the principled exception to the hearsay rule ( R. v. Waite , 2014 SCC 17 at para 4 ). She argues it is relevant to enhance the credibility of her anticipated evidence denying involvement in drug trafficking. For the reasons that follow, the hearsay statement will not be admitted because threshold reliability has not been established. THE LAW

[5] Hearsay statements are presumptively inadmissible because of the dangers in relying on untested out-of-court statements fortheir truth (R. v. Khelawon, 2006 SCC 57 at paras 59-61).

Exceptions to this general exclusionary rule have developed over time becausethe law recognized a rigid application of the hearsay rule may result in the loss of valuable evidence. [6] The principled exception to the hearsay rule permits admission of evidence where the proponent of the evidence demonstrates,on a balance of probabilities, that the hearsay evidence is reasonably necessary (necessity) in order to obtain the declarant’s version ofevents and that it is sufficiently reliable (threshold reliability) to afford the trier of fact a basis upon which to evaluate the truth of thestatement. [7] Necessity focuses on the unavailability of the declarants’ in-court testimony.

Necessity is clearly established where thedeclarant is deceased or incompetent but it may also be established when the evidence is necessary to provide a full and candid accountof the events (Khan v.

College of Physicians and Surgeons of Ontario, (1992) (ON CA), 9 OR (3d) 641 (CA) at 656).Necessity should be interpreted flexibly and includes consideration of “whether the proponent of the evidence made all reasonableefforts to secure the evidence of the declarant in a manner that also preserves the rights of the other party” (Khelawon at para 104). [8] Threshold reliability may be established through procedural reliability, substantive reliability or a combination of both.Procedural reliability is established where there are adequate safeguards for testing the evidence, such as the availability of cross-examination, the video recording of a statement, providing evidence under oath or after warning about the consequences of lying (R. v.B. (K.G.), (SCC), [1993] 1 S.C.R. 740 at pp. 797-98).

Substantive reliability may be established if the statement isinherently trustworthy considering the circumstances in which it was made and any corroborating or conflicting evidence (R. v.Bradshaw, 2017 SCC 35 at paras 30 and 57). [9] At the threshold admissibility stage, the trial judge acts as a gatekeeper to ensure only statements with sufficient indicia ofadmissibility are admitted.

At this stage, the trial judge is not deciding the truth or ultimate reliability of the statement but whether theyare satisfied the hearsay statement was made “under such circumstances that even a sceptical caution would look upon it as trustworthy”(Khelawon at para 62, citing Wigmore, at p. 154). [10] Where the proponent of the hearsay evidence is an accused person, the rigours of the hearsay rule are relaxed.

A trial judge hasthe discretion to admit hearsay evidence under the principled exception even where the proponent has failed to establish necessity andthreshold reliability if the evidence is necessary to prevent a miscarriage of justice (R. v. Srun, 2019 ONCA 453 at para 129 citing R. v.Kimberley, (2001) (ON CA), 157 C.C.C. (3d) 129 at para 80, leave to appeal to S.C.C. refused [2002] S.C.C.A. No.29 and R. v. Cuthill, 2018 ABCA 321 at para 74, application for leave S.C.C. dismissed May 23, 2019).

The Court, however, retains anexclusionary discretion even where necessity and threshold reliability have been established, if the probative value of the hearsaystatement is substantially outweighed by its prejudicial effect (Srun at para 128 citing R. v. Seaboyer; R. v. Gayme, (SCC), [1991] 2 S.C.R. 577). POSITION OF THE PARTIES [11] Genaille argues Richard’s statement should be admitted because it raises a reasonable doubt about her alleged involvement. Sheargues the only reasonable inference to draw from Richard’s comments is that the drugs belonged to him. This is consistent with heranticipated evidence.

She argues it would be unfair to preclude her from tendering relevant and reliable evidence that exonerates her. [12] Genaille relies on several cases to support her position, including R. v. Edwards, 2004 BCCA 558, for the proposition that oneaccused may tender hearsay comments made by another co-accused to raise a reasonable doubt. She argues that the necessity criteria ismet because Richard is not a compellable witness as a co-accused in a joint trial.

She argues the statement is procedurally reliablebecause it was videotaped and Richard had exercised his right to counsel before he voluntarily spoke to the police. She argues Richardwas effectively cross-examined by the police during his statement, and that addresses any potential hearsay dangers about the veracity ofhis comments. She also argues Richard’s statement is substantively reliable given the surrounding circumstances and the corroborationprovided by the evidentiary record as a whole. [13] Richard and the Crown both oppose admission of his video statement.

They argue necessity is not met because Genaille did notapply for severance, which if granted would have permitted her to compel Richard to testify at her trial and subject him to cross-examination. Richard argues procedural reliability is not met because his statement was not under oath or solemn declaration. Richardhad not promised to tell the truth. Further, Richard argues substantive reliability is not met because the statement lacks detail. Thestatement does not say why Richard believes Genaille was not involved with drug trafficking.

He did not implicate himself or anyoneelse. [14] The Crown and Richard also argue the statement is not substantively reliable because Richard may have been motivated to lieto protect Genaille, his girlfriend, from being charged with a serious criminal offence. The Crown highlights the importance of cross-examination given the vague claim Genaille was not involved with the alleged drug operation. The Crown additionally argues that evenif necessity and reliability are met, the Court should not admit this evidence because it violates the rule against oath helping andbolstering credibility.

ANALYSIS [15] In considering the law and the hearsay statement Genaille seeks to have admitted, I find that threshold reliability has not beenestablished. I have concerns relating to Richard’s perception, narration and sincerity (Khelawon at para 2). It is unclear what Richardmeant in his statement and whether he was motivated to lie when speaking to the police. [16] Although Richard’s statement is videotaped and was taken after he spoke to counsel, in the circumstances of this case, that isinsufficient to establish procedural reliability.

Richard did not provide his statement under oath and he was not warned of theconsequences of lying. His statement is devoid of any meaningful exchange or comments. I do not agree with Genaille that Richard was

effectively cross-examined by the police in a manner that addresses the hearsay dangers identified. He refused to answer most of theirquestions. [17] Richard’s vague statement offers little more than a bare assertion that his girlfriend was not involved with the alleged drugtrafficking offence. He provides no detail or basis for his comment. He does not make a declaration against his interest. He does notadmit to anything. Any inference that Genaille did not have possession of the drugs would be pure speculation.

Without cross-examination, it is difficult for the Court to know what Richard meant when he said Genaille had “nothing to do with what is going onthere”. There is no adequate substitute for testing the truth and accuracy of Richard’s statement. [18] Motive to fabricate is also a factor to be considered at the threshold admissibility stage (R. v. Hall, 2018 MBCA 122 at para 88citing R. v. Blackman, 2008 SCC 37 at para 42-43). A pre-existing relationship may present a motive to fabricate in certain circumstances(see R. v. Merz, (ON CA), [1999] O.J.

No. 4309 (leave to appeal S.C.C. dismissed October 5, 2000) and R. v.Czibulka, (2004) (ON CA), 189 C.C.C. (3d) 199 at paras 35-54). [19] In this case, Genaille and Richard’s relationship could support a logical inference Richard was motivated to provide dishonestor inaccurate information to the police in order to protect his girlfriend (Czibulka at para 43). It is conceivable Richard was attempting toprevent Genaille from being charged with a serious criminal offence without taking responsibility himself. In his video statementRichard appeared concerned about Genaille being charged.

He told the police, repeatedly, she should not be charged. Without cross-examination, the Court cannot assess Richard’s sincerity or motivation for making the statement about his girlfriend. [20] When considering substantive reliability, Bradshaw directs this Court to consider “whether the circumstances, and anycorroborative evidence, provide a rational basis to reject alternative explanations for the statement, other than the declarant’s truthfulnessor accuracy” (at para 40). Genaille argues the evidence as a whole corroborates Richard’s assertion that she was not involved.

Shehighlights the surveillance evidence alleging Richard was involved in a “hand to hand” drug transaction and the photos that show theillegal drugs were concealed in her residence. However, the photos of the exhibits seized also depict methamphetamine in a containerlocated in a bare kitchen cupboard and packaging material in plain view in common areas of the home.

It is just as conceivable thatGenaille was involved in the alleged trafficking operation. [21] After considering the totality of the evidence and the submissions of counsel, I find there is no rational basis to reject thepossibility that Richard lied to protect his girlfriend. His bald assertion that Genaille was not involved, in combination with an apparentmotive to fabricate, makes this statement highly suspect.

It is inherently untrustworthy. [22] Similarly, in Cuthill, the Alberta Court of Appeal considered the admissibility of a letter penned by one accused attempting toexculpate his brother and sister-in-law co-accused of a charge of murder. The letter said, in effect, “you didn’t do it, and I didn’t do iteither” (at para 69). The letter was consistent with an intercepted communication where the declarant told his mother he would take “thefall” for his brother and sister-in-law.

The Court of Appeal confirmed the trial judge’s ruling that the letter was inadmissible even thoughthe proponent of the evidence was an accused person, because the evidence was so suspect and unreliable (at paras 69-74). [23] The cases relied upon by Genaille to support the admission of Richard’s statement are factually distinguishable. Edwardsinvolved a unique scenario where one accused person called a witness to testify that a co-accused had confessed he was the final attackerwho caused the victim’s death. The main issue in that case related to the late disclosure of the witness’ evidence.

The Court ruled theevidence was admissible because it would have been unfair to prevent one accused from tendering evidence that it was the co-accusedwho killed the victim. The circumstances in this case are quite different. Richard did not confess. [24] Genaille also relies on R. v. Lawrence, 2020 ABCA 268, where the Court upheld the trial judge’s ruling admitting a witness’video statement to the police because it was procedurally reliable, the declarant was subject to cross-examination at trial and nothing inthe statement “was cause for alarm” (Lawrence at para 43).

In contrast, Richard will not be subject to cross-examination and hisstatement raises significant reliability concerns. [25] Richard’s statement is not procedurally or substantively reliable even appreciating the relaxation of the threshold reliabilityrequirement where the proponent of the evidence is an accused person.

Further, the circumstances do not raise the potential of amiscarriage of justice that might warrant admission of Richard`s statement even where threshold reliability is not met. [26] Turning to the necessity requirement of the principled exception to the hearsay rule, I am aware that some courts have statednecessity is established where the party seeking admission of the hearsay statement is a co-accused in a joint trial and therefore cannotcompel testimony from the declarant (see Srun at para 123, R. v.

Al Enzi, 2018 ONCJ 326 at para 86 and Cuthill at para 56).This Court need not consider this issue because even if the necessity requirement is met in this case, Richard’s hearsay statement wouldnot be admitted because threshold reliability has not been established. [27] Genaille’s application to have Richard’s video statement admitted as evidence is dismissed. “Original signed by:” CAWLEY, P.J.