HER MAJESTY THE QUEEN CROWN - v. -, 2012 SKQB 176

QUEEN ’ S BENCH FOR SASKATCHEWAN Citation: 2012 SKQB 176 Date: 2012 04 30 Docket: CR 37 of 2011 Judicial Centre: Prince Albert BETWEEN: HER MAJESTY THE QUEEN CROWN - and - CURTIS DANIEL NATAUCAPPO ACCUSED Counsel: C. L. Alexander for the Crown G. A. Chovin for the accused RULING ROTHERY J. April 30, 2012 [ 1 ] This ruling is to determine the admissibility of certain out-of-court statements in the jury trial of the charges against Curtis Nataucappo (the “accused”) of the manslaughter of Alexander Ronald Sanderson (“Sanderson”) on April 18, 2001.

Sanderson was found dead from stab wounds at about 4:30 a.m., lying on the south grid road of Mistawasis First Nation (“Mistawasis”). The information was not laid until May 13, 2010, and over this past decade, two witnesses who gave out-of-court statements to the R.C.M.P. in April, 2001, have since died. [ 2 ] The Crown seeks to admit the four out-of-court statements at the trial on the basis of the principled approach to hearsay as articulated in R. v. Khelawon, 2006 SCC 57 , [2006] 2 S.C.R. 787 and R. v. Blackman, 2008 SCC 37 , [2008] 2 S.C.R. 298.

As stated in Blackman , supra, the trial judge must first assess whether the statements sought to be admitted are relevant. If there is no probative value to the hearsay evidence, it is inadmissible. If it is relevant, the trial judge must determine if the out-of-court statements may be admitted as falling into one of the recognized exceptions to the rule against hearsay. See: R. v. Mapara, 2005 SCC 23 , [2005] 1 S.C.R.

358 at para. 15 . On this voir dire , none of the exceptions to the hearsay rule are applicable. [ 3 ] To be admissible under the principled approach to hearsay, the Crown must prove, on a balance of probabilities, that the twin criteria of necessity and reliability have been met. In this voir dire , I have concluded that the Crown has proved that the two first out-of- court statements made by Dwayne Badger (“Badger”) to the R.C.M.P. have met the twin criteria of necessity and reliability.

The third out-of-court statement, consisting of five handwritten pages with the signature of “Dwayne Badger”, is inadmissible. The out-of-court statement made by Herbie Sanderson (“Herbie”) to the R.C.M.P. is inadmissible, as it does not meet the threshold requirement of relevance. These are my reasons. [ 4 ] From the testimony at the preliminary enquiry, the testimony of R.C.M.P. officers in this voir dire, and an agreed statement of facts, the evidence in the charge against the accused is as follows.

The accused and Terry Pechawis (“Pechawis”) stole a car in Saskatoon, Saskatchewan and drove it to Mistawasis on April 17, 2001. No one on Mistawasis knew the accused; they only knew Pechawis who was from Mistawasis but was living in Saskatoon then. [ 5 ] Pechawis and the accused visited various people at Mistawasis on April 17. They drove to the bar at Mont Nebo in the stolen car, and later that night, gave Sanderson a ride back to Mistawasis. Sanderson passed out in the car, and Pechawis drove to the band office to visit Badger who was working a night shift as a caretaker.

Badger’s brother-in-law, Irwin Little (“Little”), was at the band office with Badger when Pechawis and the others arrived. [ 6 ] After Pechawis had been visiting for a while, the accused came in to the band office, stating that Sanderson was driving away in the stolen car. Because this was the mode of transportation back to Saskatoon, Pechawis asked Badger to take him and the accused in Badger’s car to catch up to Sanderson. Badger drove away in his car, with Pechawis in the passenger seat, and the accused in the back seat.

They located Sanderson in the stolen vehicle about twenty minutes later on the south grid road as it was rolling to a stop. Pechawis testified at the preliminary enquiry that he jumped in the front passenger window of the stolen car, and put the gear in park. He also reached over Sanderson in the driver’s seat and applied the brakes. Sanderson said to Pechawis, “He stabbed me.” Pechawis saw the accused pull Sanderson from the car. Pechawis left in the car, with the accused driving, leaving Sanderson on the road bleeding and Badger with Sanderson.

Pechawis testified that he did not see a weapon and he did not see the accused stab Sanderson. [ 7 ] Darrell Duquette testified at the preliminary enquiry that Badger arrived at his house at early dawn on April 18, 2001, asking to use the phone. He observed Badger call “911" then leave. The R.C.M.P. was dispatched to the scene at about 4:30 a.m. on April 18, 2001. Sanderson was dead. [ 8 ] The pathology report states that Sanderson died of multiple stab wounds to the chest, abdomen and left forearm. Sanderson’s heart was punctured, leading to massive bleeding in the left chest cavity.

The report showed toxic levels of ethyl alcohol in Sanderson’s blood, vitreous humor and urine. The time of death was approximately 4:30 a.m. [ 9 ] Badger gave a statement to Cst. Kajner the morning of April 18, 2001 on the five minute drive to the crime scene from Badger’s house on Mistawasis. He then recited his statement, with some more detail, when he was interviewed at the scene by Staff Sgt. Mayrs. Both officers made notes of Badger’s statements. Badger died on September 3, 2006, long before the preliminary enquiry held in June, 2011. Badger was at the scene when Sanderson was stabbed.

His statements are certainly relevant, and the criterion of necessity has been met. The issue is whether Badger’s out-or-court statements meet the threshold test of reliability. [ 10 ] Cst. Kajner testified in the voir dire that the R.C.M.P. major crimes unit directed him to go and collect Badger as a witness. Cst. Kajner knew Badger. Cst. Kajner arrived at Badger’s residence about 10:00 a.m. Badger appeared very rattled and nervous. Badger rode in the front of the police vehicle with Cst. Kajner. Without being asked any questions, Badger told Cst. Kajner about what happened leading up to Sanderson’s death.

As soon as Cst. Kajner directed Badger to the major crimes unit officer, Cst. Kajner wrote in his notebook what Badger told him. It is this notation in Cst. Kajner’s notebook that the Crown seeks to admit at trial. The officer’s notes of what Badger told him are paraphrased as follows: Pechawis and an unknown male age 21 years attended at the band office where Badger was working. Pechawis and the unknown male wanted a ride because Sanderson had stolen their car. Badger gave them a ride. He feared they would be mad if he refused. They caught up with Sanderson. Pechawis walked up and slapped Sanderson.

The unknown male appeared to be punching Sanderson, but he was actually stabbing Sanderson. Badger said he objected, and they turned on him. The unknown male asked Pechawis “ what do we do with him ” , pointing to Badger. Pechawis and the unknown male then drove away. Badger drove away to phone the police. On Badger ’ s return, he found Sanderson dead.

[ 11 ] Staff Sgt. Mayrs testified at the voir dire that he interviewed Badger at the scene at about 10:15 a.m., in his police vehicle. Badger told Staff Sgt. Mayrs that he was not interested in making a formal statement. Badger seemed afraid of being a witness to a murder. Badger was reluctant to speak to Staff Sgt. Mayrs, but he did so, while the officer made his own notes of the conversation. The officer ’ s notes of what Badger told him are the out-of-court statements the Crown seeks to admit at trial. Those notes add more detail to what Badger told Cst.

Kajner in the police vehicle en route to the scene, which are paraphrased as follows: Badger drove Pechawis and the unknown male to locate the white four door car. They found the car with Sanderson in the driver ’ s seat. Badger parked behind it. Pechawis approached Sanderson, slapped him and they swore at each other. Badger then saw the unknown male get out of the back seat of Badger ’ s car, and approach the driver ’ s side of the car, open the door and what he thought was punch Sanderson.

Badger said he pulled his car up along side the front vehicle and heard Pechawis say to the unknown male to “ don ’ t try stabbing him. ” Badger heard Sanderson say “ he stabbed me ” . Badger said he spun his car around and headed to Darrel Duquette ’ s house to call an ambulance. When he returned to the scene, Pechawis and the unknown male were gone. Badger then went to the band office and phoned Cst. Carter about what happened, then went home. [ 12 ] Staff Sgt. Mayrs testified that he later received a telephone call from Mr. David Gonzo, a legal aid lawyer retained by Badger. Mr.

Gonzo enquired whether Badger was a suspect. Staff Sgt. Mayrs received a five page handwritten document signed “ Dwayne Badger ” and dated April 24, 2001 from Mr. Gonzo ’ s office on May 4, 2001. Staff Sgt. Mayrs subsequently met with Mr. Gonzo and Badger at Mr. Gonzo ’ s office on May 8, 2001. Mr. Gonzo had previously stated that he was concerned about Badger ’ s safety if he gave a K.G.B. statement. Badger never did give a K.G.B. statement, but provided a DNA sample, fingerprints and footwear for checking the foot impressions on the road. [ 13 ] Mr. Gonzo died on August 1, 2008.

The original of the fax has never been located by the staff of the Prince Albert legal aid office. There is no verification that the handwriting and signature belong to Badger. It was written after Badger had obtained his own legal advice. [ 14 ] The statement gives a more detailed recounting of the events and also describes Badger ’ s encounters with Pechawis and the unknown male earlier in the evening. While the statement regarding Badger ’ s observation of the unknown male stabbing Sanderson is consistent with his two previous statements to Cst. Kajner and Staff Sgt.

Mayrs, the handwritten statement lacks sufficient reliability to be admitted as evidence at the trial. It is a statement given after Badger received legal advice, and there is a danger that it may have been edited to protect any liability Badger ’ s legal counsel may have been concerned about. Furthermore, with Mr. Gonzo being unable to testify, there is no certainty that this is even Badger ’ s statement. This five page handwritten document is inadmissible at trial. [ 15 ] Badger ’ s statements given to Cst. Kajner and Staff Sgt. Mayrs at about 10 a.m. on April 18, 2001, exhibit a high indicia of reliability.

The statements given to Cst. Kajner was spontaneous. Badger ’ s demeanour was that of a sober person who was scared and very concerned for Sanderson. [ 16 ] The first two statements were taken as soon as the R.C.M.P. were able to pick up Badger, about six hours after the homicide. The two statements were given to police officers who were trained to record the words accurately, and to do so in a timely manner. The two statements are consistent with each other. Furthermore, there is extrinsic evidence to corroborate Badger ’ s statements.

For example, the R.C.M.P. found blood in the driver ’ s side and middle console of the stolen car. The drag marks of Sanderson ’ s body had a set of footwear that corresponded to neither Pechawis nor Badger. The tire impressions of Badger ’ s car leaving and returning to the scene are consistent with Badger ’ s statement. [ 17 ] While Badger had a criminal record, that is not determinative of threshold reliability. That is a matter left to the jury in its determination of the ultimate reliability.

See: Blackman , para. 56 . [ 18 ] The Crown has proved, on a balance of probabilities, that Badger ’ s statements given to Cst. Kajner and Staff Sgt. Mayrs on April 18, 2001, are admissible at trial on the basis of the principled approach to hearsay evidence.

[ 19 ] Herbie ’ s statement does not meet the threshold requirement of relevance in this trial. Although it was given to a police officer at the scene, Herbie ’ s statement refers to encounters he had with Pechawis and the unknown male earlier in the evening. Herbie knew nothing about the stabbing; he was not there. The out-of-court statement given by Herbie to Sgt. Blight the morning of April 18, 2001 is inadmissible at trial. J. A. R. ROTHERY