R. v. Obed, 2023 NLSC 76

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Obed , 2023 NLSC 76 Date : May 25, 2023 Docket : 202201G1916 his majesty the king v. Lorraine Obed Restriction on publication : Pursuant to subsection 648(1) of the Criminal Code , no information regarding any portion of the trial at which the jury was not present shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict. This publication ban expires after the jury retires for deliberation. Before: Justice Glen L.C. Noel Place of Hearing: St.

John’s, Newfoundland and Labrador Dates of Hearing: May 8, 9, 11 and 18, 2023 Appearances: Jennifer E. Standen and Alana M. R. Dwyer Appearing on behalf of the Crown Jason A. Edwards and Sarah E. Evans Appearing on behalf of the Accused

Authorities Cited: CASES CONSIDERED: R. v. Bradshaw, 2017 SCC 35; R. v. Blackman, 2008 SCC 37; R. v. Khelawon, 2006 SCC 57; R. v. Parrott,2001 SCC 3; R. v. Hart, 2014 SCC 52; R. v. Abbey, 2009 ONCA 624; R. v. Moo, 2009 ONCA 645; R. v. Czibulka (2004), (ON CA), 24 C.R. (6th) 152, 189 C.C.C. (3d) 199 (Ont. C.A.), leave to appeal refused (2005) 244 N.R. 194 (note) REASONS FOR JUDGMENT Noel, J.: INTRODUCTION [1] The Accused, Lorraine Obed is charged with the second-degree murder of James Corcoran on or about August 26, 2021, at theCity of St. John’s. Ms.

Obed’s trial before Judge and Jury commences on September 25, 2023. [2] The Crown brought four applications seeking pre-trial rulings on: 1. Permission to tender hearsay evidence at trial; 2. Permission to tender enhanced video and still images at trial; 3. Voluntariness of the Accused’s statements to police; and 4. Admissibility of post-offence conduct evidence, also known as after-the-fact conduct. [3] Counsel for the Accused filed “Acknowledgements” of items 2 and 3, above.

The Crown seeks to enter into evidence theenhanced video from the doorbell camera at 7 Cabot Street and the still photographs from the enhanced video. The video will not beotherwise altered. The Accused therefore acknowledges the admissibility of the video camera footage. [4] The Crown is seeking to have certain statements made by the Accused to the police, specifically set out in the Notice ofApplication, declared voluntary and admissible.

The Accused acknowledges that these statements to police were voluntary andadmissible on the common law basis of voluntariness only. [5] The parties agree I need not make any ruling on the post-offence conduct evidence in question at this time. The post-offenceconduct evidence is a trial issue rather than an admissibility issue. As the trial judge, I may in my final instructions to the jury berequired to instruct them on what uses they can make of the evidence and the proper inferences they may draw from the evidence.

Thiswill depend on the evidence as a whole and the issues raised at trial. [6] The hearsay evidence the Crown seeks permission to tender for the truth of its contents is an out-of-court statement of adeceased witness, Allison Smith. Ms. Smith gave a written statement, at the scene of the homicide, to Constable Carter of the RoyalNewfoundland Constabulary (RNC). Ms. Smith unfortunately died of unknown cause in January of this year. [7] The Crown is seeking to tender, under the principled approach to hearsay, only portions of Ms.

Smith’s statement and not theentire statement to prove the actus reus (the action or conduct element) of the offence. The Crown is relying on the material aspects ofMs. Smith’s statement to establish Ms. Smith observed a female stab a man. The Crown submits the portions of the statement that arenot corroborated by other evidence should not be put to the jury and can be removed from the statement. [8] I will explain why I reject the Crown’s application to tender only certain portions or any of the statement of Ms.

Smith to thejury, and why I accept the submissions of the Defence that the hearsay dangers cannot be overcome by instructions to the jury onultimate reliability of the statement. issue [9] The issue for determination is: Can the Crown tender at trial hearsay evidence of only the material portions of the written statement Allison Smith provided toCst. Carter to establish the actus reus of the offence?

Background [10] On the voir dire hearing, the Crown called five RNC officers and one lay witness and entered the notes of Constable Stacey(by consent) to establish the facts to ground the threshold admissibility of Ms. Smith’s statement to Cst. Carter. The Defence called noevidence. [11] Constable Strowbridge was the first police officer to arrive on scene. He received a report that a female had stabbed a male in

the area of Cabot Street, Cookstown Road, Saunders Place, and Carter’s Hill intersection. Upon his arrival, he noticed several people had gathered. [ 12 ] Constable Hynes arrived on scene simultaneously as Cst. Strowbridge. He was dispatched to Saunders Place and observed a male lying in the street with his face covered in blood. One or more individuals were performing CPR on the victim. Bystanders pointed to a female person stating, “It’s her, it’s her.” He proceeded to detain the suspect and place her in his police vehicle. She was later identified as the Accused. [ 13 ] Cst.

Strowbridge went to relieve a person giving chest compressions to the victim. He rendered first aid to the victim and observed a stab wound to the front chest near the neck area. A bystander approached and advised him that the knife used in the stabbing was just across the street from the victim. He located and secured for evidence a standard kitchen steak knife on top of a storm drain manhole on Saunders Place. [ 14 ] He spoke with Ms. Smith on Cookstown Road, who appeared to have witnessed the incident, but he noted that she seemed tight-lipped and reluctant to give a statement.

She indicated that she was only willing to give a statement to Cst. Carter or Cst. Stacey, who by that time had arrived on scene. [ 15 ] Cst. Strowbridge observed Ms. Smith was cooperative and calm, but visibly shaken relative to what she had been involved in on that day. She appeared as sober while talking to him, and she was “solid on her feet.” On cross-examination, he agreed nowhere in his notes did he note she was calm and sober, and he could not say what her demeanor was like while intoxicated. He had observed her on other occasions in the downtown area. [ 16 ] Cst.

Carter inquired of people gathered at the scene to identify if someone saw what happened. As Cst. Carter was conducting scene containment, he approached Ms. Smith. He was familiar with Ms. Smith as a vulnerable member of society struggling with mental health and involved with sex-trade work in the past. She identified herself as someone who actually observed a “friend get hurt.” When he first approached her, “she wanted to leave in some ways.” She did provide him with a verbal account of what occurred that he documented in his notes. [ 17 ] Ms.

Smith advised that the victim’s name is “SpongeBob.” They were both waiting on Cabot Street. The female suspect ran out of a house on Cabot Street and started beating on his chest. Ms. Smith told him to run. The suspect then emerged from the house with a knife and said she was going to stab her or “SpongeBob.” She could hear him screaming, “I got sliced!” She then pointed out to Cst. Carter where she believed the initial stabbing had occurred, which was on Cookstown Road, north of the intersection with Cabot Street on the right hand side of the road, just north of the stop sign. [ 18 ] Cst.

Carter noted a small collection of blood pooling in the vicinity pointed out by Ms. Smith, then noted droplets of blood travelling south on Cookstown Road, across the intersection on the right hand side of the road, just north of the stop sign. Cst. Carter observed blood pooling and then droplets of blood travelling south on Cookstown Road, across the intersection and eventually ending where the deceased male was lying. [ 19 ] While Ms. Smith expressed she did not want to give an audio or video statement, she was willing to give Cst. Carter a written statement on scene. Cst. Carter started taking Ms.

Smith’s statement at 19:22 and concluded the statement at 19:35. Ms. Smith placed her signature on the statement as simply “Allison.” [ 20 ] In direct examination, he stated her articulation was better than on other times he had seen her and seemed to be corroborative of what they were seeing. He conceded he experienced her in “different minds sets” and what she would be saying was “not as reality all the time.” [ 21 ] Cst. Carter acknowledged on cross-examination that some details in the initial verbal account to him are not in the written statement. He also acknowledged that Ms.

Smith had substance and drug-abuse issues, and he cannot say for sure what Ms. Smith would be like when intoxicated. [ 22 ] On August 27, 2021, Constable Martin and Cst. Stacey were tasked with locating Ms. Smith for a follow-up interview. On August 28, 2021, they located Ms. Smith on Livingstone Street at Long’s Hill. She first identified herself to police as Rachel, then admitted her real name. Cst. Martin stated that she again refused to attend RNC Headquarters to give a statement, and said that she had already told police everything that she knew about what had happened. [ 23 ] Cst.

Martin also testified that on September 15, 2021, she attended St. John’s City lock-up and met with Ms. Smith while she was in custody on an unrelated matter, and explained her reason for attending. She inquired if Ms. Smith would be willing to provide an audio-recorded interview. Ms. Smith abruptly got up and told Cst. Martin she was not getting involved any further and she had already provided a statement. [ 24 ] Cst. Martin knew of Ms. Smith as a “sex worker” from her role in the RNC “Criminal Intelligence” division. She confirmed Ms. Smith was intoxicated by drugs numerous times.

Her behavior often indicated she was on some sort of drug, such as walking in the middle of the street or “all over the place.” [ 25 ] Constable Milmore is in the Major Crime Unit and the File Coordinator on the investigation. She offered no evidence of any assistance on the voir dire . [ 26 ] Mr. Daunt Lee testified he was driving up Carter’s Hill and got to the stop sign at the corner of Saunders Place and Carter’s Hill when a woman approached his vehicle. The woman he described met the description of Ms. Smith.

She pounded on the door of his Suburban SUV shouting, “Let me in the truck.” She seemed frazzled and panicked. She pointed to a woman stating, “Missus stabbed buddy.” He did not let Ms. Smith into the vehicle because he had encountered her before panhandling and down on Long’s Hill. She did not seem to be in immediate peril.

analysis [ 27 ] Hearsay statements, as with any form of evidence, must be relevant in order to be admissible. While all relevant evidence is generally admissible, hearsay is presumptively inadmissible because of the dangers that it presents. Allowing the jury to consider hearsay can compromise trial fairness and the trial’s truth-seeking process: ( R. v. Bradshaw , 2017 SCC 35 , at paras. 20 and 21 ). [ 28 ] In determining whether the Crown can tender at trial portions of the written statement Ms. Smith provided to Cst.

Carter, I must consider: i. threshold relevance; ii. admissibility under an exception to the hearsay rule; iii. the criteria of necessity and threshold reliability in accordance with the principled approach to hearsay; and iv. probative value versus prejudicial effect. (

i) Threshold Relevance [ 29 ] The Crown submits that material aspects of Ms. Smith’s written statement meet the standard for threshold relevance on the actus reus of the offence – an unlawful act of Ms. Obed, specifically stabbing of the victim. Ms. Dwyer for the Crown confirmed in oral submissions that it is not seeking to lead any evidence of Ms. Smith to prove the Accused’s identity or for the inference that it proves motive or disproves self-defense.

Such aspects may be part of the final argument, if the Crown presents other evidence. [ 30 ] To establish threshold relevance, “the evidence must simply tend to increase or diminish the probability of the existence of a fact in issue”: ( R. v. Blackman , 2008 SCC 37 , at para. 30 ). I find that Ms. Smith’s statement satisfies threshold relevance on the actus reus element of the offence. (ii) Admissibility under an Exception to the Hearsay Rule [ 31 ] The Crown agrees that the evidence of Ms. Smith does not fall within a traditional exception to the rule against admission of hearsay evidence.

The Crown is relying on the principled approach. (iii) Principled Approach to Hearsay [ 32 ] Under the principled approach to hearsay, the party tendering the evidence must demonstrate that the twin criteria of “necessity” and “threshold reliability” are met on a balance of probabilities: ( R. v. Khelawon , 2006 SCC 57 , at para. 47 ). Necessity [ 33 ] The Defence concedes that the Crown has established the criterion for necessity: ( R. v. Parrott , 2001 SCC 3 , at para. 4 ). [ 34 ] Since Ms.

Smith is deceased, the only way her evidence can be brought before the trier of fact is by allowing the jury to hear it through another witness or read it for themselves. Cst. Carter and the statement of Ms. Smith that he reduced to writing are the best available sources for the information in question. Threshold Reliability [ 35 ] The inquiry on the admissibility of Ms. Smith’s statement strictly concerns threshold reliability. Threshold reliability is established when the hearsay “is sufficiently reliable to overcome the dangers arising from the difficulty of testing it”: ( Khelawon at para. 49 ).

The threshold question is “whether the evidence is worthy of being heard by the jury”: ( Bradshaw at para. 116 of the dissenting opinion of Moldaver J citing R. v. Hart , 2014 SCC 52 , at para. 98 , quoting R. v.

Abbey , 2009 ONCA 624 , at para. 89 ) [ 36 ] The hearsay dangers can be overcome and threshold reliability established by showing: - there are adequate substitutes for testing the truth and accuracy ( procedural reliability) or - there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy ( substantive reliability): ( Bradshaw at para. 27 ). [ 37 ] Bradshaw (at para. 32 ) makes clear that procedural reliability and substantive reliability are not mutually exclusive and factors relevant to one can complement the other.

The threshold reliability standard always remains high. Procedural Reliability [ 38 ] Procedural reliability is established when there are adequate substitutes for testing the evidence. These substitutes must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement. Substitutes for traditional safeguards include a video recording of the statement, the presence of an oath, and a warning about the consequences of lying.

However, some form of cross-examination of the declarant, such as preliminary inquiry testimony is usually required: ( Bradshaw at para. 28 ) [ 39 ] There are no indications of procedural reliability in relation to Ms. Smith’s statement and the Crown is not relying on procedural reliability. The statement was not audio recorded, not video recorded, and not under oath or preceded by a police warning. Further, Ms. Smith was not subject to cross-examination, as she did not attend the preliminary inquiry, even though she was served with a subpoena.

[40] Because the Crown cannot establish the hearsay dangers of Ms. Smith’s statement are overcome by procedural reliability, itmust rely solely on substantive reliability. Substantive Reliability [41] Substantive reliability requires that I be satisfied that Ms.

Smith’s statement is “so reliable that contemporaneous cross-examination” of her “would add little if anything to the process”: (Bradshaw at para. 31) [42] I must consider all relevant factors, including the presence of supporting or contradictory evidence: (Khelawon at para. 4). [43] The Crown relies on the following factors, as indicia of reliability, to support the admissibility of the portions of Ms. Smith’sstatement it seeks to elicit at trial:

a) Timing and Spontaneity of the Statement including the circumstances of the making of the Statement;

b) Presence or Absence of a Motive to Lie; and

c) Corroborating Evidence

a) Timing and Spontaneity of the Statement including the Circumstances of the Making of the Statement [44] The Crown points to the timing and spontaneity of Ms. Smith’s statement to Cst. Carter, including while the victim, suspect,and Ms. Smith were all still present in the location of the homicide. The Crown relies on the ruling in R. v. Moo, 2009 ONCA 645, atpara. 104, that “spontaneous outpourings of the declarant” can factor into the assessment of reliability. [45] The antemortem statements of the deceased in Moo involved far different circumstances than here. Mr.

Moo was convicted ofmurdering his wife in an argument over their longstanding acrimony over where the wife’s parents should live. The wife had maderecent statements to ministers of her church, friends and family members about the acrimony, discord in their marriage, violence thehusband inflicted on her, and threats that he would kill her. [46] The appellate court upheld the trial judge’s threshold reliability ruling.

The trial judge placed (at para. 81) particular emphasison the contemporaneity of most of the deceased’s utterances, the fact that all were unprompted, and that the deceased had no motive tolie. [47] I accept the contemporaneity of Ms. Smith’s statement is a factor that assists the Crown in establishing threshold reliability ofthe statement. It must be considered together with other factors in determination of substantive reliability.

b) Presence or Absence of a Motive to Lie [48] In a nine-judge unanimous decision of the Supreme Court of Canada, Madam Justice Charron stated: “[T]he presence orabsence of a motive to lie is a relevant consideration in assessing whether the circumstances in which the statements came about providesufficient comfort in their truth and accuracy to warrant admission”: (Blackman at para. 42).

However, motive is again but one factor toconsider in the determining of threshold reliability, the significance of which depends on the circumstances. [49] The Crown submits that the evidence of the circumstances reveals she had no reason to lie about her observations of the victimand the suspect, or what she purportedly saw. [50] I cannot conclude that the evidence before me on the voir dire supports the Crown’s contention that Ms. Smith had “no reasonto lie.” Quite simply, I do not know. [51] The Ontario Court of Appeal discussed “no motive to lie” regarding hearsay statements in R. v.

Czibulka (2004), (ON CA), 24 C.R. (6th) 152, 189 C.C.C. (3d) 199 (Ont. C.A.), leave to appeal refused (2005) 244 N.R. 194 (note), at para. 44,stating: “Lack of evidence of motive to fabricate is not the equivalent to proved absence of motive to fabricate.” Rosenberg JA observed“motive is in effect a neutral consideration” where there is simply no evidence and no logical inference that the declarant had no motiveto lie (at para. 43). [52] In the absence of evidence, I cannot make a finding in favor of the Crown that Ms.

Smith had no motive to fabricate aspects ofher statement. [53] The Defence submits that the interactions of Ms. Smith with the police demonstrate the risk of untruthfulness in her words anda potential motive to fabricate. Cst. Strowbridge who first interacted with Ms. Smith noted that she was tight-lipped, and that she wouldonly speak with certain officers. Upon follow-up attempts days later to get audio/video statements, Ms. Smith initially provided a fakename to Cst. Martin and Cst. Stacey, and refused to speak any further. She again refused when questioned at the lock-up by Cst. Martin. Since Ms.

Smith did not attend the preliminary inquiry for cross-examination purposes, the Defence submits this again raises concernsabout the truthfulness of her statement and unwillingness to participate in the court process and speak further about her evidence. [54] I cannot accept the Defence submission that Ms. Smith’s refusal to cooperate further with the police to give an audio/videostatement or her failure to attend the preliminary inquiry raises concerns about a motive to lie. Ms. Smith had no obligation to cooperatewith the police. She provided Cst. Carter a written statement and wanted no further involvement.

Ms. Smith had her own troubles withdrug addiction and involvement with the police and the legal system, and this may very well have been the reason for not wanting toparticipate further in the process rather than indicative of motive to fabricate. [55] Just as there is no factual basis for me to conclude she had no motive to lie, neither is there a factual basis to conclude

conversely that her statement was tainted with a motive to fabricate. [ 56 ] I must be careful to distinguish between veracity (truthfulness) and reliability (accuracy) of Ms. Smith’s evidence on the threshold inquiry. What Ms. Smith said in her statement she may very well have believed to be true, but that does not mean it is accurate and reliable. Something may be false but honestly perceived to be true. [ 57 ] In the end, resolution of threshold reliability in this matter turns squarely on the corroborating evidence and the presence of supporting or contradictory evidence.

c) Corroborating Evidence The Crown’s Position [ 58 ] The Crown submits that the statement of Ms.

Smith has substantive reliability in that it is inherently trustworthy as the material aspects of the statement are corroborated by other evidence. [ 59 ] The Supreme Court in Bradshaw stated (at para. 57 ) that to determine whether corroborative evidence is of assistance in the substantive reliability inquiry, a trial should: - identify the material aspects of the hearsay statement that are tendered for their truth; - identify the specific hearsay dangers raised by those aspects of the statement in the particular circumstances of the case; - based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement; and - determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternative explanations such that the only remaining likely explanation for the statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement. [ 60 ] When applying the four steps discussed in Bradshaw , the Crown submits that the material aspects of Ms.

Smith’s statement are that she walked over to 16 Cabot Street where an Inuit woman came out of 16 Cabot Street. Ms. Smith and a male she identifies as “SpongeBob” walked to the intersection. The woman came out with a knife. Ms. Smith ran to the top of Carters Hill and looked back and saw the woman give the man a backhanded swing to the throat. An ambulance showed up and the man she knew as SpongeBob was dead. Ms. Smith said the stabbing happened on the corner of Cookstown Road and Cabot Street.

She described the suspect as Inuit with long black hair, black tank top, grey shorts and stated she did not know her name. Ms. Smith describes the knife as a silver kitchen knife and she did not see the handle of the knife. [ 61 ] Therefore, the Crown seeks to tender Ms. Smith’s statement to show that on August 26, 2021, a woman exited 16 Cabot Street, followed Ms.

Smith and a male she knew as “SpongeBob” to the intersection of Cabot Street and Cookstown Road, had a kitchen knife on her person and stabbed the male. [ 62 ] The Crown submits that the potential hearsay dangers to be considered are those of truthfulness and accuracy. [ 63 ] The Crown agrees that I must consider alternative, even speculative, reasons for the material portions of Ms. Smith’s statement. These could include that Ms.

Smith did not accurately observe the interaction between the woman and man or the object the suspect possessed, or is not being truthful about her observations. [ 64 ] Further, the Court could consider the possibility that Ms. Smith’s statement indicating that she observed a knife on the woman and that the woman stabbed the man was due to learning, after the fact, that there had been a stabbing and that Ms. Smith made assumptions about seeing a knife or seeing a stabbing. [ 65 ] The Crown submits that video footage, testimony from Cst. Carter about the circumstances of the taking of Ms.

Smith’s statement, testimony from Cst. Strowbridge regarding the location of a knife at the crime scene, the medical examiner’s report indicating cause of death of Mr. Corcoran, and the testimony of witness Mr. Lee rule out alternative explanations. Accordingly, the only remaining likely explanation for the statement of Ms. Smith is her truthfulness about, and accuracy of, the material aspects of the statement.

Corroborative Factual Findings [ 66 ] I accept the Crown has established the following corroborative evidence: - Video evidence obtained by the RNC from a residential doorbell camera and the GoBus shows the movements of Ms. Smith, a male she identifies as “SpongeBob,” and a female with long dark hair on the evening of August 26, 2021. - The video from 7 Cabot Street shows Ms. Smith and “SpongeBob” approach 16 Cabot Street then walk toward the intersection of Cabot Street and Cookstown Road, and the female with long dark hair follows shortly after.

The video shows the female with long dark hair approach the male, makes a swinging motion and strikes the upper left area of the male’s body. - The video from the GoBus shows Ms. Smith walk away from the intersection of Cabot Street and Cookstown Road, look back toward that area for a moment, then approach an SUV. Ms. Smith is then heard screaming and seen running away. [ 67 ] I find the video evidence corroborates the movements of persons as discussed by Ms. Smith in her statement. The knife located by Cst. Strowbridge matches the description to the knife observed by Ms. Smith (a “silver” blade “kitchen knife”).

Photographs of the knife are in evidence. The medical examiner’s report further indicates the cause of death was a single stab wound to the left-upper chest.

The video from 7 Cabot Street further corroborates this as it shows the female strike the male in the upper torso. Mr. Lee’s vehicle is observed on the GoBus video. Mr. Lee confirmed a woman approached his vehicle screaming a woman stabbed a man. Crown’s Submission on Inadmissibility of Portions of Ms. Smith’s Statement [ 68 ] The Crown submits there are four portions of Ms. Smith’s statement that are inadmissible because they are either not reliable or necessary. First, Ms.

Smith’s statement, “She started banging on his heart five times for no reason.” Second, “I seen her do it a few times to the same spot.” Third, Ms. Smith’s statement, “He yelled ‘I got sliced.’ I asked him if he got stabbed, he covered his neck and said ‘I got sliced!’” These three statements, the Crown submits, do not meet the threshold of reliability. Fourth, Ms. Smith mentioned other eyewitnesses and comments made by one of these witnesses about the victim. The Crown submits this would not meet the necessity standard, as these witnesses are available to testify.

Acceptance of the Defence Position on Insufficient Substantive Reliability [ 69 ] I accept the Defence position and submissions of Ms. Evans that Ms. Smith’s evidence would likely change under cross- examination. I find the material aspects of Ms. Smith’s statement fail to meet the requirements for substantive reliability. [ 70 ] The inherent unreliability of Ms. Smith’s evidence is demonstrated by the Crown’s proposal to redact portions of Ms. Smith’s statement that are not corroborated and even inconsistent with other evidence. Two material aspects of Ms.

Smith’s statement are indeed contradicted by the video evidence tendered by the Crown. The video evidence directly refutes Ms. Smith’s statements that the woman who Ms. Smith described as the suspect was “banging on his chest five times,” and then stabbing him “a few times to the same spot.” The autopsy report also rebuts any wound other than a single laceration. [ 71 ] Why then did Ms. Smith get those two material things completely wrong? I am left to speculate. Is she embellishing what occurred? Why would she have reason to embellish? Is she simply confused as to what happened?

Was it not her own observation but based on assumptions or what she heard from by-standers? [ 72 ] Ms. Smith’s perception of events may have been distorted by intoxicating substances. The evidence revealed Ms. Smith had a history of substance abuse and it is unknown whether she was intoxicated that day. Ms. Smith’s statement does not record whether she was asked about consuming drugs or alcohol that day. Cst. Carter testified he did not observe Ms.

Smith to exhibit signs of intoxication, but he could not say what she is like when intoxicated. [ 73 ] Without Defence counsel having the opportunity to explore these contradictions and other concerns in cross-examination of Ms. Smith, the jury would not be properly informed and in a safe position to decide on the truth and ultimate reliability of all, some, or none of Ms. Smith’s evidence. The glaring inconsistencies are simply too serious to meet threshold reliability. [ 74 ] Furthermore, without the benefit of cross-examination, the Accused cannot explore other aspects of Ms.

Smith’s truthfulness and reliability. Although I find there is no evidence of a motive to lie, Defence counsel nevertheless ought to have had the opportunity to explore on cross-examination whether her refusal to participate further went to contradictions in her statement and avoidance of confrontation on the truthfulness or accuracy of her statements. [ 75 ] The Defence does not have the ability to explore with Ms. Smith the relationship history between her, Mr. Corcoran, and Ms. Obed. Cst. Carter asked Ms. Smith whether she knew these people. She only referred to Mr.

Corcoran by his nickname and first name, despite knowing him “for probably a year.” She stated she did not know the suspect or anything about her. Ms. Smith’s answers on cross-examination may have undermined her credibility or the reliability of her evidence on the nature of the relationship between them. [ 76 ] The Defence submits that the corroborating evidence from Mr. Lee, which includes words spoken by Ms. Smith to him on scene, is further hearsay and should not be admissible or be part of the consideration for corroboration. I have the same concerns about the hearsay dangers of Ms. Smith’s statement to Mr.

Lee, as I have expressed about her written statement. [ 77 ] On the evidence before me, the Crown has failed to establish on a balance of probabilities that Ms. Smith’s statement is sufficiently reliable and worthy of being heard by the jury. (iv) Probative Value versus Prejudicial Effect [ 78 ] Even if I had found Ms.

Smith’s statement sufficiently reliable, I would nevertheless exercise my discretion as the trial judge and gatekeeper to exclude it because its prejudicial effect outweighs its probative value: ( Bradshaw at para. 24 ). [ 79 ] There is little probative value to the sole purpose that the Crown is tendering Ms. Smith’s evidence. Exclusion of this evidence does not preclude the Crown from proving the actus reus of the offence.

The video clearly shows a person making one swinging motion to the victim’s upper torso, and the victim shortly thereafter slowly walking, stumbling and falling. [ 80 ] It is extremely prejudicial to allow the jury to be provided with a portion of Ms. Smith’s statement for the truth of its contents, but not allow contradictory aspects of her statement to be put to the jury.

To put the contradictory portions of the statement to the jury would not alleviate the prejudice but only cause confusion for the trier of fact. [ 81 ] I must balance the prejudicial effect to the Accused of the inconsistencies presented by Ms. Smith’s statement with the probative value of her evidence in light of the totality of evidence that the jury will have before it. I accept the Crown’s submission that the perspective of each witness is unique, and the Crown is entitled to conduct the presentation of the evidence on proof of the actus reus as it sees appropriate.

Nevertheless, it is my duty when deciding on the admissibility of evidence to ensure and promote trial fairness to both parties and to prevent any foreseeable distortion of the trial’s truth-seeking process. [ 82 ] It is apparent from reviewing the video evidence there was at least one other bystander in the immediate vicinity of the stabbing. The jury will have the benefit of the video evidence, and presumably hearing directly from the other person that appears in it.

The Crown has not indicated that person is unavailable to testify. [ 83 ] In the context of all the evidence available to the Crown, fairness dictates that I prevent the confusion and frustration of the jury’s fact-finding task with the inconsistencies of Ms. Smith’s evidence that the Defence will have no opportunity to challenge. [ 84 ] For the reasons offered and in the exercise of my discretion as the gatekeeper on the admissibility of evidence, I am not permitting the Crown to elicit any of Ms. Smith’s statement to Cst. Carter. order [ 85 ] I order that: 1.

The material aspects of the written statement provided by Allison Smith to Cst. Carter do not meet the requisite threshold reliability for the Crown to tender portions of the statement at trial, and Ms. Smith’s hearsay evidence is inadmissible; 2. The Crown is permitted to enter into evidence at the trial the enhanced video from the doorbell camera at 7 Cabot Street and the still photographs from the enhanced video. 3. The Accused’s statements to the identified police officers are voluntary and admissible at trial for the purposes of admission in the Crown’s case. 4.

The post-offence conduct evidence in question is a trial issue that may warrant appropriate final instructions to the jury. ______________________________ Glen L.C. Noel Justice