Her Majesty The Queen v. T.(B.) DECISION ON THE ADMISSIBILITY OF THE POLICE STATEMENT OF C.(B.) JUDGE: The Honourable Anne S. Derrick, 2012 NSPC 86

IN THE YOUTH JUSTICE COURT OF NOVA SCOTIA R. v. B.T., 2012 NSPC 86 Date: September 27, 2012 Docket: 2388561 - 2388565 Registry: Halifax BETWEEN: Her Majesty The Queen v. T.(B.) DECISION ON THE ADMISSIBILITY OF THE POLICE STATEMENT OF C.(B.) JUDGE: The Honourable Anne S.

Derrick HEARD: September 26, 2012 DECISION: September 27, 2012 CHARGES: sections 235, 344 , 355 (b), 342(1) (c), and 88(1) , of the Criminal Code COUNSEL: Ronald Lacey and Kimberly McOnie, for the Crown Luke Craggs, for T.(B.) By the Court: Introduction [ 1 ] On November 19, 2011, Glenn Oakley, a 70 year old resident of Spryfield in the Halifax Regional Municipality, died as a result of being shot in the abdomen.

The police investigation into his homicide led to charges of murder against Jerricho Upshaw, aged 18, and a seventeen year old, T.(B.) Another teenager, Christopher Picco was charged as an accessory after the fact to murder. Mr. Upshaw is scheduled for a judge and jury trial in Supreme Court in April 2013; Mr. Picco will have his judge and jury trial two months later. [ 2 ] T.(B.)’s trial for first degree murder and related charges began on September 11 before me in the Youth Justice Court. The Crown subpoenaed both Mr. Picco and Mr. Upshaw to testify as witnesses. Mr. Picco testified on September 12, 2012.

It was the Crown’s intention to have Mr. Upshaw in the witness box on September 19. [ 3 ] On September 13, Mr. Upshaw, through his counsel, Brian Church, Q.C., sought to quash his subpoena on the grounds that his fair trial rights would be compromised if he was compelled to testify. His application was first advanced before me and, once I determined on September 14 that I did not have jurisdiction (R. v. Jobin, [1995] S.C.J.

No. 31 , paragraph 28 ) , heard by Coady, J. of the Nova Scotia Supreme Court on September 18 along with a companion application for a ban on publication in the event the subpoena was not set aside,. Coady, J. dismissed both of Mr. Upshaw’s applications. [ 4 ] Mr. Upshaw was brought into court on September 20 and affirmed. He then answered only the first question put to him by the Crown, following which he resolutely refused to answer any more. I ultimately cited Mr.

Upshaw for contempt and set his show cause hearing for November 23, 2012, the earliest date when all counsel and the Court can be available. [ 5 ] In the face of Mr. Upshaw’s steadfast refusal to testify, the Crown launched an application to have his statement to police, obtained on November 21 and 22, 2011, admitted into evidence on the basis of a principled exception to the hearsay rule. On September 20, 21, 24, 25 and 26, I heard evidence relating to that voir dire, which I will refer to as the Upshaw voir dire. [ 6 ] On September 26, the Crown called C to testify in the Upshaw voir dire.

C identified herself as T.(B.)’s girlfriend. I will review C’s evidence shortly but for these introductory purposes it is enough to say that when questioned by the Crown, C purported to have no memory of November 19, 2011. She also purported to have no memory of what she told police when she was interviewed on December 8, 2011. She testified that she doesn’t remember anything specifically about November 19, 2011 and that all she can recall about December 8, 2011 is being arrested and taken to the police station where she met Det/Cst. Tony Blencowe.

She was given the opportunity to review five separate portions of the transcript of her December 8, 2011 statement but she maintained this did nothing to refresh her memory.

[ 7 ] As a consequence of C’s being unable or unwilling to recall the events which the Crown wished to question her about, the Crown has applied to have her December 8 police statement admitted into evidence as a principled exception to the hearsay rule, precisely the same type of application which the Crown has made with respect to Mr. Upshaw’s police statement. The Crown’s application required a voir dire which I will refer to as the C voir dire. [ 8 ] This then is my decision on the admissibility of C’s police statement as evidence in the Upshaw voir dire.

If I find the C statement admissible at this stage, counsel will later address the issue of its admissibility as evidence in T.(B.)’s trial proper: in this respect, C’s statement is, at this point, on a different footing from Mr. Upshaw’s as my decision on the admissibility of Mr. Upshaw’s statement will determine if it is to be admitted as evidence at trial. This decision on C’s statement deals only with its admissibility at the Upshaw voir dire. The Purpose of C’s Evidence [ 9 ] As I have noted, C was called to testify for the Crown in the Upshaw voir dire.

The purpose of C’s evidence is to provide confirmation of certain aspects of Mr. Upshaw’s statement. The Crown is seeking to have C’s evidence admitted so that I will have it, along with the other evidence called in the Upshaw voir dire, to assess the threshold reliability of Mr. Upshaw’s statement. Only if it satisfies the requirements for threshold reliability can Mr. Upshaw’s police statement be admitted into evidence at T.(B.)’s trial.

C’s Testimony [ 10 ] Although she claimed in her testimony to have no memory of any specific events on November 19, 2011, C was able to describe her relationship to T.(B.), Jerricho Upshaw and Christopher Picco. In November and December 2011, C was T.(B.)’s girlfriend. She was friends with both Jerricho Upshaw and Christopher Picco. She recalled that Mr. Picco lived in an apartment on River Road in Spryfield, which has been confirmed by other evidence I have heard, including from Mr. Picco himself.

She testified that she remembers she was with T.(B.) on November 19 but doesn’t remember “what [she] was doing [or]…anyone else being around.” C’s Statement to Det/Cst. Blencowe [ 11 ] On December 8, 2011 C was arrested as a suspect in a robbery. As she was being transported to the Halifax Regional Police station, she made a statement that she was responsible for Glenn Oakley’s death. This was brought to the attention of Det/Cst. Blencowe who met with C for the purpose of taking a statement from her. Det/Cst. Blencowe had been involved with interrogating Jerricho Upshaw on November 21, 2011.

He testified at the C voir dire that he was not however part of the Oakley homicide investigative team. [ 12 ] On December 8, 2011, C was seventeen years old and a young person within the meaning of the Youth Criminal Justice Act . Det/Cst. Blencowe was aware of this. He was also informed that she had never been interviewed in relation to Mr. Oakley’s death. In view of C’s claim of responsibility for his death, Det/Cst. Blencowe decided to take a “Chartered” and cautioned statement from her. He did so in an interview room at the Halifax Regional Police station that was set up for audio and video recording.

According to the monitor notes (Exhibit VD-5) and the transcript of the interview (VD-4), C was audio and videotaped from 3:33 p.m. to 7:57 p.m. on December 8. During this time, in accordance with her requests, Det/Cst. Blencowe arranged for her to meet with family members, including her mother, and a lawyer. [ 13 ] Det/Cst.

Blencowe began his interview with C by complying with section 146(2) and (4) of the Youth Criminal Justice Act , the provisions that set out the requirements to be satisfied by police interrogators if a statement from an arrested or detained young person is to be admissible as evidence against them. Det/Cst. Blencowe was explicit with C: she was being investigated for and could be charged with the offence of murder.

He testified that he was satisfied she understood what he explained to her and a review of this portion of her interview indicates that she plainly understood she did not have to give a statement and repeatedly stated that she had no intention of doing so. Det/Cst. Blencowe acknowledged that she did not have to talk, telling her at one point: “If you don’t want to say anything, don’t say anything at all.” [ 14 ] At 4:50 p.m. C’s mother is brought into the interview room to see C. Det/Cst.

Blencowe warns them that the room is videotaped and that if they want to have a private conversation they need to request to be taken to another room. After a few minutes, C makes this request and leaves to speak privately with her mother for almost 15 minutes. Before this, she is emphatic with her mother that she will not be making a statement, a position that her mother unequivocally endorses. [ 15 ] C is back in the cameraed interview room at 7:06 p.m. without her mother. When Det/Cst. Blencowe asks her why she had her mother leave, C says she just wants to go to sleep. Det/Cst.

Blencowe engages C in a generalized conversation about unspecified hardships C has experienced, how she was arrested without shoes or a jacket, and an earlier trip to Waterville until Det/Cst. Blencowe brings their discussion back around to why she is there. He presents himself as concerned about her situation, telling her: “I want to talk to you about a couple of things, because I don’t want to see you get railroaded here. And that’s my biggest concern here today, is you being railroaded.” He brings up T.(B.) and Mr. Upshaw’s reactions to “what happened” and says Mr.

Picco “got himself charged because he took the gun and he took the man’s belongings after the guys were finished with it.” The Oakley homicide is squarely back on the table. [ 16 ] Det/Cst. Blencowe then tells C that he does not think she pulled the trigger. “Do I think you pulled the trigger? No, I don’t think you pulled the trigger.” C immediately responds: “And I never helped either.” Det/Cst. Blencowe tells C that she was there “and saw something pretty nasty.” She denies this: “No. I never saw anything either.” [ 17 ] Det/Cst.

Blencowe narrows the time frame of his focus to the early evening of November 19: “…this was all said and done by 8:30 at night.” C tells him that she wasn’t with T.(B.) at 8:30 p.m. She says she doesn’t know “exactly what time, like, everything happened. But there was a time that I wasn’t with him, for, like, a period of time.” [ 18 ] C is firm: she was not at the bridge where it happened and did not see anything. [ 19 ] At about 7:28 p.m., despite having very recently said she did not want to give a statement, C gives some details about what she was

doing on November 19: “I was in Spryfield with B. and Picco and Jerricho and a couple other people…And B and Jerricho left and cameback. And I walked home. And we made a few pit stops on the way home and then we went home. And that’s how my night went.” [20] Det/Cst. Blencowe asks C where the “pit stops” were. C says she doesn’t know: “I just stayed outside wherever they went. Andthat’s what happened. I was with my friend – my cousin Michael.” She doesn’t offer anything more specific than “Herring Cove Roadsomewhere” when Det/Cst. Blencowe tries to pin down the location of the “pit stops”.

When asked if the “pit stops” were at businessesat Herring Cove Road, C says: “Yeah. I sat at a bus stop.” She tells Det/Cst. Blencowe that she and T.(B.) then went to her house, whichDet/Cst. Blencowe had previously indicated he knew to be true. [21] Det/Cst. Blencowe then asked C specifically about her knowledge of the homicide. “When did you become aware that he did themurder?” C responds only with “Mm” and Det/Cst. Blencowe asks: “When did he tell you he did the murder?” C replies: “That night.” She balks at answering any more questions but Det/Cst.

Blencow wants to know how “he” was when he told her what happened. C tellshim: “He was fucked up. He didn’t even look like the same person.” [22] Det/Cst. Blencowe succeeds in getting C to give him an answer to the question: “Did B ever tell you why they shot the oldfellow?” C replies by shaking her head and saying: “I know it wasn’t planned, though.” She adds: “Or I would have knew about it.” (Iwill note that this is not what the transcript indicates for C’s response but I am satisfied after listening to this portion of the interview anumber of times that the transcript is incorrect.

Furthermore, the transcribed answer does not make sense in the context of what C issaying.) [23] Det/Cst. Blencowe continues to probe the question of why Mr. Oakley was shot. He succeeds in getting C’s opinion on the issue.She tells him: “I don’t know. I have no idea. I ask the same questions every day…I think it’s all fucked up. I think it’s a very fucked upsituation that was never supposed to happen.” She says she doesn’t know what happened and then talks about T.(B.) being “on pills.” “Ithink B was on pills, to be honest with you – I know he was on pills. He took pills.

And I think they fucked with him and he fucking justmade one stupid-ass decision, had Jerricho there, and that’s what I think happened.” As for Det/Cst. Blencowe’s question about whosedecision it was to shoot Mr. Oakley, C says: “I don’t fucking know. I think it was both their stupid-ass decisions. They’re stupid people,they’re idiots.” [24] C consistently maintains that she had nothing to do with the homicide, did not go to see the body, and did not touch Mr. Oakley’swallet or cards. Near the end of the interview, Det/Cst. Blencowe pointedly asks her did she kill Glenn Oakley. C says no.

She also tellshim no when he asks if she was present. And while she is no more forthcoming about her walk home on the night of November 19, shedoes tell Det/Cst. Blencowe that she “just stood and waited outside” an apparent reference back to her earlier description of the “pitstops” on Herring Cove Road. It was “very dark” she tells him and she really doesn’t remember where this was. Det/Cst. Blencowe doesnot ask her if it was in the vicinity of the Royal Bank nor is C asked if she and T.(B.) made the “pit stops” with Jerricho Upshaw. [25] During her interrogation, C complains about being “freezing” and tired.

She asks at various times to be allowed to go to the cellsand sleep. Not long after she says she is cold, and it obvious from the video that she is, Det/Cst. Blencowe provides her with a largewhite blanket. It looks very similar to the blanket the police investigators supplied to Mr. Upshaw, which was described in Sgt. Kelly’sevidence as a fleece blanket. C spends the remainder of the interrogation wrapped in the blanket and near the end, even Det/Cst.Blencowe acknowledges that the room is chilly.

The Principled Approach to the Admissibility of Hearsay Evidence [26] The Crown wishes to have C’s statement to Det/Cst. Blencowe admitted into evidence for its truth. It is therefore hearsay andpresumptively inadmissible. (R. v. Khelawon, 2006 SCC 57 , [2006] S.C.J.

No. 57, paragraph 59) The principled exception tothe hearsay rule will permit the admission of a witness’ statement if the Crown succeeds in showing, on a balance of probabilities, thatthe statement’s admission is (1) necessary and (2) reliable. (Khelawon, paragraph 42) A residual discretion to exclude the statementexists even where the criteria of necessity and reliability are made out if the statement's probative value is outweighed by its prejudicialeffect. (R. v. Blackman, 2008 SCC 37 , [2008] S.C.J. No. 38, paragraph 33) [27] As stated in R. v. Poulette, [2008] N.S.J.

No. 455 (C.A.): "Hearsay is excluded not because it is irrelevant to the inquiry before thecourt, but due to the difficulty in testing its reliability." The contents of a statement cannot be tested in the manner that a witness can be:the possibility of misperceptions, incorrect recollections, misrepresentations and lies cannot be explored.

These factors, relevant to thecredibility and reliability of a statement, can only be tested if the witness is in the witness box and subject to cross-examination. [28] The fact that a witness’ statement cannot be tested through cross-examination does not however preclude it being admitted asevidence for the truth of its contents: ... it is recognized that the inability to test evidence through cross-examination does not bar the admission of the hearsay evidence when(

i) there is no real concern about whether the statement is true or not because of the circumstances in which it was made; and/or (ii)circumstances are such that the trier of fact will be able to sufficiently test the truth and accuracy of the statement. These situations arenot mutually exclusive alternatives and can both be considered in assessing the admissibility of a statement. (Khelawon, paragraphs 49and 61-63.) [29] The admissibility of the statement is dealt with as an issue of threshold reliability. The criterion of reliability is about ensuring theintegrity of the trial process.

The evidence, although determined to be necessary, is only admissible if it is “sufficiently reliable toovercome the dangers arising from the difficulty of testing it.” (Khelawon, paragraph 49) Threshold reliability focuses on theadmissibility of the statement, not on whether it will be relied on for deciding whether the charges have been proven against the accused.In addressing the matter of threshold reliability and whether the statement should even be allowed into evidence, ... all relevant factors should be considered, including, in appropriate cases, the presence of supporting or contradictory evidence.

In eachcase, the scope of the inquiry must be tailored to the particular dangers presented by the evidence and limited to determining theevidentiary question of admissibility. (Khelawon, paragraph 4)

The Principled Approach - Necessity [30] My focus in the admissibility assessment of C’s statement is on its threshold reliability. Crown and Defence have both submittedthat the necessity requirement has been satisfied by C’s wholesale memory deficits. I agree. The necessity criterion is to be given aflexible definition. (Khelawon, paragraph 78) A purported memory loss makes it necessary to have the statement, and focuses theanalysis on threshold reliability. (R. v. Phillips, [2012] O.J. No. 1725 (Ont. S.C.J.), paragraph 28; R. v. B.R.J., [2012] N.S.J. No. 235(Y.J.C.), paragraph 21; R. v. Ord, [2011] N.S.J.

No. 338 (P.C.),paragraph 27; R. v. C.E.S., [2009] M.J. No. 195 (C.A.), paragraph 25)) It is unnecessary for me to determine, even if I could, whether C’s memory loss is genuine or feigned. (R. v. Thomas, [2009] M.J. No.305 (C.A.), paragraph 29) Necessity is made out in this case on the basis of the unavailability of the testimony. (Khelawon, paragraph78) The Principled Approach – Reliability [31] C’s statement does tick a number of the boxes in the threshold reliability analysis.

It was videotaped in its entirety; and while C didnot take an oath or solemn affirmation, the serious nature of the interrogation was made explicit to her; Det/Cst. Blencowe also told C itwould be better if she said nothing rather than lie. The primary concern about C’s statement is that she cannot be cross-examined aboutthe truth and accuracy of the statement because she claims to have no memory of what she said and no memory of the events she wasbeing asked about. In these circumstances I must be satisfied that, …this concern is sufficiently overcome…to justify receiving the evidence.

This criterion is usually met by showing that sufficient trustcan be put in the truth and accuracy of the statements because of the way in which they came about, or by showing that in thecircumstances the ultimate trier of fact will be in a position to sufficiently assess their worth. The two ways of demonstrating thresholdreliability are not mutually exclusive. (R. v. Blackman, 2008 SCC 37 , [2008] S.C.J. No. 38, paragraph 35; Khelawon,paragraphs 61-64) [32] In R. v. Couture, 2007 SCC 28 , [2007] S.C.J.

No. 28, although writing in dissent, Rothstein, J.’s observations on the issueof cross-examination are apposite: While the importance of an oath and cross-examination cannot be disputed, their availability is by no means the sine qua non ofadmissibility under the principled approach to hearsay. R. v. Khan, (SCC), [1990] 2 S.C.R. 531, and R. v.

Smith, (SCC), [1992] 2 S.C.R. 915, are both examples of cases where the hearsay statements were not made under oath and were notsubject to cross-examination but were nevertheless found to meet the threshold reliability under the first method described in Khelawon.In other words, the hearsay evidence was made under circumstances which substantially negate the possibility that the declarant wasuntruthful or mistaken: Smith, at p. 933. (Couture, paragraph 116) The Circumstances Under Which C’s Statement Was Made [33] First of all I will indicate that I am satisfied the Crown has established that C’s statement was voluntary and not obtained as a resultof any threats, promises, inducements, coercion, or oppression.

I find that Det/Cst. Blencowe conducted the interrogation in accordancewith the requirements of section 146(2) and (4) of the Youth Criminal Justice Act, informed C of her rights and facilitated theimplementation of them. As noted, C met with family members and an experienced criminal defence lawyer before Det/Cst. Blencowegot down to the business of trying to get a statement from her. It is apparent from the interview that C understood her right to silence andexercised it. [34] Mr. Craggs has pointed out that Det/Cst.

Blencowe told C she had the right to stop the interrogation at any time when in fact shedid not have that right. Det/Cst. Blencowe indicated to C that she could “stop” him at any time, explaining to her “…you can stop it”, andwhen she gave him back her understanding of what she was being told - “I can tell you to stop whenever I want to” – he responded with“Perfect”. This is not how the interrogation played out: C did try to bring it to an end several times, saying she just wanted to go to sleepand not be questioned anymore but Det/Cst. Blencowe disregarded these complaints.

And even though he had told C she could “stop” theinterrogation, shortly after this and while still reviewing the Statement of a Youth Form, Det/Cst. Blencowe told C, who had just said shewas not “doing any statements” - “That’s fine, you don’t have to talk, but we still have the right to talk to you.” He says to her later, inresponse to her saying she has a right to be silent: “Your right is to be silent. But I am going to talk to you, that’s my right.” [35] I do not find that Det/Cst.

Blencowe’s conduct of C’s interrogation, including his inconsistent statements to her that she could“stop” the questioning at any time only to later say he could keep talking to her even if she decided not to, animates any reliabilityconcerns. There is no indication that C was under any misapprehension about her right to remain silent, no signs that she was having anydifficulty understanding Det/Cst. Blencowe, and no indication that she failed to grasp what he was doing and why. [36] It was Mr. Craggs’ submission that C’s detention by Det/Cst.

Blencowe became unlawful after he appears to have accepted thatshe had not been a party to Mr. Oakley’s homicide. This occurred at approximately 7:23 p.m. when Det/Cst. Blencowe and C had thefollowing exchange: D/Cst. Blencowe: Do I think you pulled the trigger? No, I don’t think you pulled the trigger. Ms. C: And I never helped either. D/Cst. Blencowe: But you were there and saw something pretty nasty. (Ms. C. denies this.)

[ 37 ] When this exchange was read to him in cross-examination, Det/Cst. Blencowe accepted the suggestion that he was agreeing with C that she never assisted the perpetrators of the homicide. He testified he had been satisfied she didn’t lure Mr. Oakley to the bridge or pull the trigger. He did believe however that C had been at Christopher Picco’s before Mr. Oakley was shot and may have known a robbery was being planned and the homicide was going to happen. [ 38 ] Mr. Craggs is correct that mere knowledge of this nature, if C had possessed it, would not have made her culpable as a party to murder.

However, there is an indication that past this point in the interview, Det/Cst. Blencowe continued to believe there was a reasonable possibility C may have had party culpability. Almost at the end of the interrogation he asks her the question, did you kill Glenn Oakley? He also asks her if she was present when Glenn Oakley was murdered. I do not find that Det/Cst.

Blencowe unlawfully detained C nor do I find that anything in the way he conducted the interrogation, including the manner in which he framed his questions, created a risk that she would make untruthful statements. [ 39 ] C, when cross-examined about the taking of her statement, said she had been “really cold and tired” and “a little bit scared, but not that much.” Nothing made her feel better, not meeting with her family or talking to the lawyer who attended to give her advice. She testified that she felt “really fed up with everything” when told she was being investigated for murder.

She did not say that she had lied to Det/Cst. Blencowe or tried to mislead him. It is apparent from C’s statement that she was being circumspect in what she said, where she said anything. Corroborative Details in Other Evidence [ 40 ] Finding that Det/Cst. Blencowe’s approach to questioning C does not raise reliability issues eliminates a source of concern but does not lessen the importance of looking for consistencies between what she had to say and other evidence before me.

This exercise raises an issue I debated with counsel: can Jerricho Upshaw’s statement be mined for corroborative details or is it inappropriate to use it for this purpose where its admissibility has yet to be determined and it is itself the subject of a Khelawon application? [ 41 ] I do not have an entirely settled mind on the question of whether it is appropriate to use Mr. Upshaw’s statement as a source for confirmatory details to corroborate C’s statement to Det/Cst. Blencowe.

This would using a hearsay statement - the Upshaw statement - whose threshold reliability has not yet been determined to bolster the threshold reliability of a statement that the Crown wants admitted as evidence on the Upshaw voir dire. It looks like boot-strapping. Such a use leaves me with an uneasy feeling, these statements cross- pollinating each other when they are both being scrutinized for threshold reliability.

On the other hand, perhaps it is a matter where any similarities in the statements are just that: they are similarities that are to be assessed for their value as similarities, an assessment that does not require either statement to be reliable, just similar.

This may be what the Supreme Court of Canada, was contemplating, in Khelawon , at paragraph 108 , where Charron, J. stated: “…I too would not reject the possibility that the presence of a striking similarity between statements from different complainants could well provide sufficient cogency to warrant the admission of hearsay evidence in an appropriate case.” But then there is this, from the same paragraph in Khelawon : “However, the statements made by the other complainants in this case posed even greater difficulties and could not be substantively admitted to assist in assessing the reliability of Mr.

Skupien’s allegations.” [ 42 ] I am not comfortable with the Crown’s submission that I can use the Upshaw statement to corroborate C’s statement to Det/Cst. Blencowe. I decline to rely on whatever it might have to offer. [ 43 ] There are other sources: Samantha Smith testified on the Upshaw voir dire and she identified C as being with T.(B.), Mr. Upshaw and Mr. Picco at Mr. Picco’s apartment on the evening of November 19. Mr. Picco’s evidence that T.(B.) and Mr.

Upshaw left his apartment on a couple of occasions is consistent with C saying there was a period of time that night when she and T.(B.) were not together and also her saying that at one point “B and Jerricho left and came back.” There is a strong similarity between Mr. Picco’s description of T.(B.) and Mr. Upshaw looking shocked and drained of colour when they returned to the apartment and told him that Mr.

Oakley had been shot and C’s description of T.(B.) when she says he told her what had happened: “He was fucked up, he didn’t even look like the same person”. [ 44 ] C provided only small pieces of information to Det/Cst. Blencowe. Her sparse detail is not much to work with. The options for establishing a basis for finding corroboration are very limited. I note that any inconsistencies between C’s statements to Det/Cst.

Blencowe, and the evidence of other witnesses is an issue to be addressed at the ultimate reliability not the threshold reliability stage. (Thomas, paragraph 46) Determination of Threshold Reliability [ 45 ] I find I am satisfied I can have confidence that C’s statement to Det/Cst. Blencowe is probably reliable. I have indicated that I regard the circumstances under which the statement was taken satisfy various reliability concerns and did not operate to undermine reliability. I have found C’s statement to have been voluntary.

The video and audiotaping of the statement has enabled me to assess C’s demeanor and she did not appear to be at all intimidated, suggestible, or overly anxious to please. At times she was resistant and showed attitude. When she was more subdued and sad, even to the point of crying, it was apparent that she was reacting to the situation she was in, caught up in a homicide investigation. Although complaining of being tired, beyond yawning, C did not seem sleepy and did not fall asleep. Det/Cst.

Blencowe saw to her needs and in questioning C, seems to have adopted the adage “you can catch more flies with honey than with vinegar”. C’s statement is comprised of small details only, and as I have noted, most of them appear in other evidence before me. Det/Cst. Blencowe did not put words in C’s mouth: what she said to him was her version of events and she resisted strenuously suggestions he put to her, for example, that she was ever at the scene of the shooting. This is not a situation where there are inconsistent

statements that raise heightened reliability concerns as this is the only statement C has ever provided. Taking into account all the circumstances, I find the statement meets the threshold reliability requirements to be admitted into evidence at the Upshaw voir dire.