R V RBL, 2023 ABCJ 193

In the Alberta Court of Justice Citation: R V RBL, 2023 ABCJ 193 Date: 20230911 Docket: 200327625P1 Registry: High Prairie Between: His Majesty the King Crown - and - RBL Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify GB must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Ruling on Voir Dire by the Honourable D.R. Shynkar Assistant Chief Justice Introduction [ 1 ] RBL is charged under sections 271 and 246 (

b) of the Criminal Code , sexual assault and administering a drug with intent to assist him to commit that offence, in relation to GB, now deceased. The trial commenced after Wabasca-Desmarais docket on July 20th, 2023, with a Charter application filed that morning and a v oir dire in relation to a statement made by the complainant.

[ 2 ] After discussion with counsel, it was agreed that the Defence Charter application would be considered a “standing” application, the voir dire in relation to the statement would proceed, and I would hear argument and rule on both concurrently.

That was intended to avoid an adjournment of the trial while I considered the Charter application; alternatively, it avoided my having to immediately rule on the Charter application in an effort to move the voir dire ahead promptly. [ 3 ] The Charter application is essentially founded on the complaint that the Crown’s intention to tender in evidence the deceased complainant’s statement to police was not appropriately signaled to the accused in advance, and that RBL has suffered such resulting prejudice that either a stay is appropriate, or the evidence should be excluded. [ 4 ] The voir dire issue is whether the deceased complainant’s statement to police should be admitted into evidence, whether as res gestae or as a principled exception to the hearsay rule.

Counsel agree that GB died May 27th, 2021. The Charter Application [ 5 ] The Defence argues that the Crown ought to have given formal notice of its intention to apply to have the deceased complainant’s statement entered in evidence, by way of an application under the Criminal Rules. Arguably, Rule 2.6 is applicable.

It requires an application by way of a “Form 1” and supporting materials, in relation to “a complex evidentiary application such as an application for the admission of similar fact evidence.” [ 6 ] The fundamental objectives of the Rules, as set out in Rule 1.3, include ensuring that criminal proceedings “are dealt with in a fair, efficient, orderly and consistent manner,” which entails treating Crown and Defence fairly, recognizing an accused’s right to be tried within a reasonable time, and recognizing society’s interest in a prompt and efficient process.

Here, those objectives might be fairly paraphrased as including neither side being taken by surprise. [ 7 ] A brief review of the matter’s procedural history provides helpful context. This was the 7th day scheduled for trial. The first trial, scheduled for May 4th, 2020, was adjourned due to Covid. On the January 18th, 2021, trial date, Defence counsel then retained was ill. On the July 19th, 2021, trial date, defence sought an adjournment upon learning that the complainant was deceased. The February 14th, 2022, trial date was adjourned because of “Crown unavailability” of some variety.

It is unclear from the endorsements why the July 28th, 2022 trial date was adjourned. The August 11th, 2022, trial date was adjourned (on August 10th) because counsel was removed. [ 8 ] The endorsements show new counsel appearing by agent on October 13th, and November 24th, 2022, at which time a purported election of Queen’s Bench judge and jury was made. It appears that none of the participants noted on those occasions that an election of Provincial Court Judge had previously been made (and of course, trials previously scheduled).

There was no formal request to re-elect, and no written consent of the Crown to a re-election. That Defence counsel did not continue, and at some point was replaced with current counsel. On the day this trial finally commenced, Crown and Defence agreed with the court’s analysis that the purported Queen’s Bench election had never been effected (although by then it would have been referenced as King’s Bench), and therefore the matter remained as a Court of Justice trial. [ 9 ] The relevance of the purported Judge and Jury election is that this matter appeared on the judicial

schedule as a preliminary hearing, and it may be that Crown and/or Defence were under the impression, at least at some point, that such was the nature of the proceeding.

While that is not entirely clear, it might explain correspondence from Crown to Defence a month before this last trial date, expressing the Crown’s intention to tender the complainant’s statement under section 540(7), which of course relates to preliminary hearings. [ 10 ] At the commencement of trial, Defence counsel referred to this correspondence as an intentional misdirection, or alternatively, as negligence, and argued that the former constitutes an abuse of process while the latter lends further support to the argument that the proceedings have become so fundamentally unfair (noting the absence of a formal application under the Criminal Rules) as to constitute a breach of RBL’s Charter rights. [ 11 ] On the subsequent date fixed for argument on the voir dire , and for any further submissions on the Charter application, Defence counsel refrained from allegations of abuse of process or negligence but argued that the Crown’s continual description of its evidentiary application as relating to res gestae was misleading, when its clear intention was to apply for inclusion of the evidence on the basis of a principled exception to the hearsay rule. [ 12 ] I do not accept that the Crown’s letter was intentionally misleading, in the absence of clear evidence of such intention.

That the reference to section 540(7) was incorrect is quite clear, although the ineffective attempt to elect by the agent of former counsel likely played some

part in that. That observation does not ignore the expectation that the Crown (and then Defence counsel, and the Court) ought to have been aware from the endorsements that a Provincial Court (now Court of Justice) election had been made long ago. I also observe that the heading of Defence counsel’s written response to the Crown’s letter referring to section 540(7) describes the expected proceeding as a trial.

In any event, that rather odd turn of events is not dispositive of the Charter application. [ 13 ] The accused here became aware of the complainant’s death at least two years ago: the endorsements indicate that then Defence counsel sought an adjournment of the July 19th, 2021 trial date because he had learned that she was deceased. There were 4 trial dates subsequently scheduled, including the most recent one.

It is not unreasonable to assume that the accused and his various counsel were aware that because the complainant was deceased, the admission of her statement in evidence would be critical to the Crown’s case. [ 14 ] Similarly, current Defence counsel acknowledges having access to disclosure which included, among other things, the complainant’s statement, and agrees that she was indeed aware early in her retainer that the complainant was deceased.

She was of the view that the Crown would not be able to prove its case; she fairly conceded that it was clear from the disclosure that the only conceivable way the case could be proven would be for the statement she considered inadmissible to be admitted in evidence.

[ 15 ] When asked by the court in the course of initial argument why she would not have simply asked the Crown if it intended to withdraw, given her view that the prosecution had become impossible, she noted that it is not for the Defence to alert the Crown to weaknesses in its case. Fair enough.

But having chosen that approach, it is difficult to later complain that one did not foresee the Crown proceeding in a particular way, a way which would have been clarified upon one asking. [ 16 ] Neither do I find it significant that the Crown has continually framed its argument for inclusion in evidence of the deceased complainant’s statement as relating to res gestae .

While that framing of the application is arguably incorrect (as will be noted below), the case law submitted by the Crown in advance of the trial date was a sufficient signal of its intention to argue for inclusion of the evidence in question, and that same case law detailed the potential for admissibility regardless of the label applied.

The cross examination of both the police and expert witnesses by Defence counsel was not deficient even if the focus of her attention was on the viability of the res gestae concept in its traditional form, as opposed to the viability of admissibility as a principled exception to the hearsay rule. [ 17 ] In this situation, it would seem that there were only two possible outcomes of the Defence making an inquiry of the Crown, early on, to determine its intentions: either the charges would be withdrawn, saving trial preparation and freeing up court time, or Defence counsel would be alerted to the potential for an approach she had not considered, or that she considered incapable of execution.

The Criminal Rules admonish the participants in criminal proceedings to “act in accordance with the fundamental objectives,” referenced above. While that certainly does not extend to a requirement for Defence to assist the Crown with its case, it does encourage courteous and timely communications between Crown and Defence in an effort to ensure that both efficiency and fairness are addressed. [ 18 ] Such clarification might well have resulted in discussions between counsel and the timely exchange of argument and authorities, and the erroneous reference to section 540(7) may have assumed little or no significance.

Counsel might have had discussions early on regarding the difference between res gestae in its traditional form and evidence which might be admitted as a principled exception to the hearsay rule. And instead of the last-minute drama of a Charter application filed and argued on the day of trial, replete with allegations of abuse of process and negligence, the trial proceedings could have been promptly underway. That court location is between roughly 120 kms and 450 kms away from the residences of the various participants, and the trial was scheduled to follow docket.

At the close of evidence on the voir dire , I declined to hear argument that day, noting the time as 4:41 pm, and the clerks and sheriffs facing a roughly 250 km drive home, with my own travel another 200 km beyond that. [ 19 ] In that entire context, I am not satisfied that the accused has established a breach of his Charter rights on a balance of probabilities. The Statement [ 20 ] The video recorded statement was made at the Desmarais RCMP detachment on September 18th, 2019, beginning at 7:49 am and ending at 8:15 am.

The described events relevant to the current prosecution appear to have occurred either late the previous evening or earlier that morning.

The essential allegation of the Crown, based on the statement, is that RBL provided alcohol to GB to further his designs, and sexually assaulted her in his vehicle by way of a non-consensual groping or fondling. [ 21 ] The statement is further briefly summarized as follows: GB left RBL’s vehicle in response to RBL’s behaviour, and attempted to enter a nearby home, believing it was hers; when it became apparent that it was not her residence (on the basis that RBL’s mother answered the door and told her to go away or the police would be called), she began walking home; she was seen on the road by RCMP officers, who picked her up and drove her home; she did not tell them what had happened.

When she got home, she spoke to her mother, who apparently called police. [ 22 ] I heard the evidence of the constable who took the statement. With reference to his notes, he testified that he received a call from dispatch about 6:30 am, apparently in relation to a report made by GB to her mother. He met with GB and her mother at the mother’s residence at approximately 7:30 am, and from discussions with them, he understood that GB had arrived at about 6 am. GB appeared to him to be fairly calm, although she was upset, and said she had been assaulted.

He felt she was “functioning on another level,” by which he clearly meant to indicate cognitive impairment of some kind. He did not consider GB to be intoxicated, but she appeared very nervous and uncomfortable. As a result of those discussions, he brought GB to the detachment to obtain a video statement from her. Her demeanor, which is to say apparent relative sobriety coupled with anxiety and discomfort, remained the same.

He identified the video, and it was marked as an exhibit in the voir dire . [ 23 ] In cross examination, the constable agreed that GB’s mother did not appear to like RBL, and referred to him as “pervert [R].” Although he had indicated in earlier evidence that he thought “the incident” had happened around midnight, he was unable to specify why he thought so. He had no information about which officers had earlier given GB a ride home or when. He agreed that GB was not given a perjury warning prior to his taking the statement, nor asked to take an oath.

He did not make inquiries to confirm that her references in the statement to the death of her brother were correct. [ 24 ] I also heard, by Webex, the evidence of Dr. Flaro, a neuropsychologist who had assessed GB and produced a report dated February 5, 2018.

Following some difficulties associated with the doctor not having a copy of his CV at hand, and the Crown not having a convenient way to present it to him for identification, as well as disagreement over his area of qualification, counsel agreed firstly, that his expert opinion evidence could be received “as a neuropsychologist qualified to do assessments in relation to brain relationships” (a qualification the doctor suggested, after rejecting that proposed by the two counsel), and secondly, that a portion of the written report could be marked as an exhibit on the voir dire . [ 25 ] Dr.

Flaro’s opinion of GB, based on his examinations of her prior to the preparation of the report, was that she suffered from widespread neuropsychological impairment, global developmental delay, and that attention, language, memory, and executive function were all severely impaired. He said she would be unable to “make decisions.” He assessed her developmental age at 6 to 8 years, although he had assessed her at the age of 16.

He felt that she did not have capacity to make informed decisions about things like drinking or having sex, and that she did not understand safety or “danger situations.” He said her condition was unlikely to change without good programming.

[26] In cross examination, Dr. Flaro confirmed that he would not expect GB’s condition to change without programming, and eventhat might only have helped her advance “somewhat.” He testified that she “did not anticipate the consequences of her actions,” that shesometimes could not complete tasks because of memory issues, and that she suffered from “severe memory impairment across visual andverbal working memory.” [27] In re-direct and re-cross, Dr.

Flaro addressed questions about GB’s autobiographical or “personal history” memory, notingthat the relevant literature suggests it may be robust in such cases, but that GB’s severe memory impairment would suggest she mighthave difficulty with autobiographical memory retention. However, this was not something he was specifically assessing when he metwith GB and prepared his resulting report. Analysis [28] The Crown tendered the following authorities in reference to the argument for admission of the statement: R v Khan (SCC) (SCC) | R. v. Khan | CanLII R v Smith (SCC) (SCC) | R. v.

Smith | CanLII R v Chahley (BC CA) (BC CA) | R. v. Chahley | CanLII R v Kharsekin (NL CA) (NL CA) | R. v. Kharsekin | CanLII R v Sylvain 2014 ABCA 153 2014 ABCA 153 | R v Sylvain | CanLII R v Nault 2020 ABPC 26 2020 2020 ABPC 26 | R v Nault | CanLII [29] I summarize the relevant principles as follows:

a) Hearsay is presumptively inadmissible;

b) Exceptions include res gestae, which is traditionally a spontaneous utterance reasonably contemporaneous with the events inquestion, made under pressure or emotional intensity;

c) A principled approach to assessing hearsay reasonably entails some flexibility, particularly when the declarant is a child and thestatement concerns alleged sexual abuse;

d) A principled approach to assessing hearsay entails considering whether permitting it into evidence is reasonably necessary, and ifso, whether the hearsay evidence meets a threshold of sufficient reliability;

e) The reliability portion of the two-part necessity/reliability assessment entails a consideration of all of the factors that tend to makethe hearsay statement in question more reliable or less reliable in the context of trial fairness; f) “The context of trial fairness” requires a recognition of the inherent prejudice to an accused in being unable to test or explore theevidence in question through an examination of that declarant, in those cases in which the declarant is unavailable for whatever reason. [30] Here, necessity is established by the death of GB, and need not be addressed further.

The threshold reliability of the statementis in issue. The “threshold” concept anticipates the potential for the statement being admitted into evidence, but then weighedaccordingly in relation to its apparent value in the context of the evidence as a whole, and perhaps eventually given little or no weight, orperhaps given significant weight. [31] I do not consider this statement to be within the traditional category of res gestae statements. It was not made spontaneously,nor was it an excited, emotional outburst close in time to the alleged criminal acts.

Nevertheless, it is potentially admissible as aprincipled exception to the hearsay rule. I do not consider it fatal to the Crown’s application that the label of res gestae has been appliedto a statement that I find does not fit that traditional category of exception to the hearsay rule; the Crown has ably argued the issues ofnecessity and reliability. [32] Considerations of consequence include the following:

a) The statement was made some hours after the alleged events;

b) The statement was made after some at least rudimentary but unknown discussions between GB and her mother, and GB and theinvestigating constable, and apparently GB’s mother was not at that time fond of RBL;

c) GB received no specific warning about telling falsehoods;

d) Notwithstanding the care taken by the constable to refrain from asking leading questions, the statement is properly described as“elicited,” in the sense of being requested;

e) None of the extraneous (and somewhat unusual) details GB described in the statement were verified;

f) GB suffered from severe cognitive deficits, as described by Dr. Faro;

g) GB’s statement is quite unusual, and when considered in the context of Dr. Faro’s evidence, suggests the severe cognitive difficulties about which he testified. [ 33 ] In relation to this last point, GB’s statement was delivered in large measure in a rapid, not always easily intelligible stream of information that often referenced details of events not apparently relevant to the topic at hand. While the evidence of children can, and very often should be, accepted by the court, and GB was noted by Dr.

Flaro as being developmentally aged 6 to 8, she was not a child of 6 to 8. [ 34 ] At the time of the statement, GB was a young woman with a developmental age assessed at 6 to 8 and severe cognitive deficits, which is not the same thing as a 6 to 8 year old. Neither was she giving evidence to the court: she was making a statement to a police officer.

While GB was chronologically old enough to give sworn evidence in court, and there was the potential alternative for the court to accept her evidence upon her promise to tell the truth (section 16, Canada Evidence Act ), her statement was neither sworn nor preceded by such a promise. [ 35 ] In Khan , the child of 3 ½ years could be presumed by the court to have no concept of sexual activity, consensual or otherwise, and therefore no realistic capacity or motive to fabricate, intentionally or otherwise.

GB’s statement, in referencing sexual contact not in issue in this prosecution, made abundantly clear that she indeed had some knowledge and understanding of the nature of sexual contact, and the concept of consensual sexual contact. As noted, she was not a child of 6 to 8, but a young woman of that developmental age, cognitively.

Additionally, the child in Khan made a disclosure to her mother (which, according to the court, “emerged naturally and without prompting”) within about 15 minutes of the events, apparently without speaking with anyone else in the interim; here, GB spoke with her mother to some extent, and with the constable, and gave her statement at the police station at the officer’s request at least several hours after the alleged events. [ 36 ] In addition to all these considerations is the issue of trial fairness.

That almost always requires a reasonable opportunity for a person accused of a criminal act to explore and challenge the evidence of a witness. A trial examination of GB would very likely have been a difficult and delicate endeavour, but it is now simply not possible. That puts RBL at a significant disadvantage in defending this prosecution if the statement is allowed into evidence. That disadvantage is not sufficiently addressed by noting that the admission of the statement is critically necessary to a successful prosecution, which is simply an observation that the requirement for necessity is met.

Nor is it sufficiently addressed by noting some apparent indicia of reliability of the statement, such as that it was taken within hours of the alleged events, by a peace officer, in the absence of some blatantly obvious motive for fabrication. Nor is it sufficiently addressed by noting that admission into evidence would still leave the question of the evidentiary weight to assign to the statement.

Result [ 37 ] Referencing all the above considerations, I conclude that threshold reliability has not been established; it is inappropriate to exercise the court’s discretion to permit the entry of GB’s statement into evidence as a principled exception to the hearsay rule. That ruling is not tantamount to a comment that it was a forgone conclusion: the Crown appropriately considered the potential for admission of the statement into evidence and equally appropriately advanced the argument. Heard on the 20 th day of July, 2023 and the 29 th day of August, 2023.

Dated at the Hamlet of Wabasca-Desmarais, Alberta this 11 th day of September 2023. D.R. Shynkar A Justice of the Alberta Court of Justice Appearances: T. Hudson

for the Crown L. Trach for the Accused