Docket: CACR2080 Clarence Gabriel Gardipy Appellant - v. -, 2012 SKCA 58

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 58 Date: 20120530 Between: Docket: CACR2080 Clarence Gabriel Gardipy Appellant - and - Her Majesty the Queen Respondent Coram: Richards, Ottenbreit & Caldwell JJ.A. Counsel: Jon Danyliw for the Appellant W. Dean Sinclair for the Crown

Appeal: From: 2011 SKQB 406 Heard: May 15, 2012 Disposition: Dismissed Written Reasons: May 30, 2012 By: The Honourable Mr. Justice Richards In Concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr. Justice Caldwell Richards J.A. I. Introduction [ 1 ] The appellant, Clarence Gardipy, was convicted of (

a) assault with a weapon, contrary to s. 267 (

a) of the Criminal Code , and (

b) breaking and entering and committing robbery, contrary to s. 348(1) (

b) of the Criminal Code . One of the keys to both convictions was a statement made to the police by his cousin, Sean Gardipy (“Sean”). The statement had been video-taped. It was tendered as evidence after Sean refused to testify at the trial. [ 2 ] Mr. Gardipy argues that the trial judge should not have allowed Sean’s statement to be admitted into evidence. He contends that the trial judge determined the admissibility of the statement on the basis of an error of principle and also erred in his assessment of its reliability. As explained below, both of these arguments must fail. II.

Background [ 3 ] I will begin by briefly outlining as much of the factual background of this case as is necessary for the resolution of Mr. Gardipy’s appeal. A more complete treatment of the facts can be found in the trial decision ( 2011 SKQB 406 ). [ 4 ] On December 22, 2009, at 4:20 a.m., Justin Scott was in his home on the Beardy’s First Nation. Four men kicked in his door. All were wearing balaclavas. [ 5 ] Two of the men grabbed Mr. Scott and held him in the kitchen. The other two searched his living room and bedroom for things to steal. Mr. Scott recognized the voices of Chris Gamble and Jason Smallchild.

Both lived on the Beardy’s First Nation and both were known to him. [ 6 ] Mr. Scott also recognized the voice of a third culprit as belonging to Sean. His identity was further confirmed, at least to Mr. Scott, when his colleagues referred to him as “Lionel” during the course of the robbery. That is the name Sean is known by on the First Nation. [ 7 ] Throughout the ordeal, the men yelled at Mr. Scott and demanded that he tell them the location of his “stash”. They assaulted him by repeatedly punching and kicking him. One of the blows caused a significant injury to Mr. Scott’s ear. Mr.

Scott testified that, at one point, the man he did not recognize picked up a butcher knife from the kitchen counter and held it to his throat. Chris Gamble directed him to “cut” Mr. Scott. Mr. Scott believed his throat was going to be slashed. Fortunately he received only a serious laceration on his chin. [ 8 ] Mr. Scott eventually fled to his sister’s home and called the police. Cst. Harley Gillman, an R.C.M.P. member who lives on the Beardy’s First Nation, responded quickly. He saw at least three sets of footprints in the fresh snow. They led directly from Mr. Scott’s home to Jason Smallchild’s trailer. Cst.

Gillman also saw footprints going from the Smallchild trailer to Mr. Scott’s home.

[9] Cst. Gillman arrested Mr. Gardipy, Jason Smallchild and Chris Gamble nine days after the robbery. Sean turned himself in severaldays after that. [10] A bail hearing was conducted on January 20, 2010. Mr. Gardipy was the only one of the four men released on bail. After thehearing, Cst. Gillman drove Sean to the R.C.M.P. detachment in Rosthern. Sean appeared to be upset about something and Cst. Gillmanasked him what was going on. Sean replied that he was angry because Mr. Gardipy had lied about not being involved in the crimes. Cst.Gillman asked if he was willing to give a statement to that effect.

Sean replied in the affirmative. [11] When Cst. Gillman and Sean arrived in Rosthern, Sean provided a warned statement which was recorded on video. The interviewlasted about 20 minutes. Sean described what had happened at Mr. Scott’s home and who had participated in the crime. He identifiedMr. Gardipy as being one of the four men involved. [12] Sean ultimately pled guilty and was sentenced to jail time. At the trial of Messrs. Gardipy, Gamble and Smallchild, he was calledby the Crown as a witness. However, he refused to testify. This led the prosecutor to attempt to admit Sean’s video-taped statement asevidence.

A voir dire was held. [13] The trial judge admitted the statement on the basis of the principled exception to the hearsay rule explained in R. v. B.(K.G.), (SCC), [1993] 1 S.C.R. 740. The judge concluded that it was necessary to introduce the statement because Sean had refusedto testify. He also concluded that the statement was sufficiently reliable to be admitted. [14] Sean’s statement was the only evidence linking Mr. Gardipy to the invasion of Mr. Scott’s home. Mr. Gardipy was convicted andsentenced to a prison term of four years. III. Analysis [15] Mr.

Gardipy takes issue with the trial judge’s decision on two levels. First, he says the trial judge determined the admissibility ofSean’s statement by using an improper principle. Second, he contends the trial judge incorrectly assessed the reliability of Sean’sstatement. I propose to deal with each of these arguments in turn. However, it is first helpful to confirm some governing concepts. A. Governing Concepts [16] Sean’s statement clearly constitutes hearsay.

It was made out of court and the Crown seeks to introduce it for the truth of itscontents. [17] The framework governing the admission of hearsay evidence was neatly summarized in R. v. Mapara, 2005 SCC 23, [2005] 1S.C.R. 358 at para. 15: 15 . . . Based on the Starr decision [2000 SCC 40], the following framework emerges for considering the admissibility of hearsayevidence: (

a) Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptionsto the hearsay rule remain presumptively in place. (

b) A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required bythe principled approach. The exception can be modified as necessary to bring it into compliance. (

c) In "rare cases", evidence falling within an existing exception may be excluded because the indicia of necessity and reliability arelacking in the particular circumstances of the case. (

d) If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity areestablished on a voir dire. [18] The Crown and Mr. Gardipy agree that this case concerns item (d), above. Thus, Sean’s statement could only have been lawfullyadmitted if the double indicia of necessity and reliability were established.

[ 19 ] “Necessity” was not a contested point at the trial. The Crown and Mr. Gardipy agreed that the necessity requirement had been satisfied by virtue of Sean’s refusal to testify. As a result, the admissibility of Sean’s statement turned on the question of reliability. [ 20 ] The criterion of reliability is usually met in one of two manners. First, by reference to the way in which the statement in question came about. Second, by showing that, in all of the circumstances, the ultimate trier of fact will be in a position to sufficiently assess the worth of the statement.

These two approaches to demonstrating reliability are not mutually exclusive. See: R. v. Blackman , 2008 SCC 37 , [2008] 2 S.C.R. 298 at para. 35 . [ 21 ] I should also note that the proper approach for this Court to take when reviewing a decision of the sort in issue here was described as follows by Charron J. in R. v. Blackman : 36 The trial judge is well placed to determine the extent to which the hearsay dangers of a particular case are of concern and whether they can be sufficiently alleviated.

Accordingly, the trial judge's ruling on admissibility, if informed by correct principles of law, is entitled to deference. . . . B. The Alleged Error of Principle [ 22 ] Mr. Gardipy says the trial judge did not apply the proper test in relation to Sean’s statement because he failed to begin from the premise that out of court statements are presumptively inadmissible.

He suggests the trial judge reversed the relevant onus by proceeding on the basis that the weaknesses in how the statement was obtained were not sufficiently serious to render it inadmissible. [ 23 ] This argument is rooted in the following words from the trial judge’s ruling on the voir dire : … Defence counsel have pointed out several deficiencies in the manner in which the statement was obtained. Unfortunately, it is rare that the whole procedure is carried out perfectly.

There are some elements in this instance when things might have been done better, but on the whole I am satisfied, certainly beyond a balance of probabilities, that the statement of Sean Lionel Gardipy is reliable. [ 24 ] Taken by itself, this passage might perhaps suggest the sort of error of principle described by Mr. Gardipy. However, in my view, it is necessary to look at the whole of the proceedings in order to decide if the trial judge made the mistake alleged. [ 25 ] On this front, I begin by noting that the presumptive inadmissibility of hearsay evidence is a trite and basic principle of evidence law.

Not surprisingly, the prosecutor’s arguments on the voir dire were grounded on an unstated assumption that he had to persuade the trial judge to admit what was an otherwise inadmissible statement. For example, he began his submissions as follows: . . . [T]he issue at this time is for the Court to determine whether or not the out-of-court statement of Mr. Sean Gardipy can be admitted as part of the trial itself, to prove the truth of its contents.

In order to do so the Crown relies on the principle [ sic ] exception to the hearsay rule, which indicate that there has to be the necessity as well as the reliability established on a balance of probabilities. [ 26 ] Not insignificantly, Mr. Smallchild’s counsel began his argument in response to the prosecutor’s submissions by saying “. . . I agree with my friend that the video is hearsay and is presumed inadmissible except for exceptions under the principles exceptions with regards to the hearsay rule”. None of the other defence lawyers took a different approach.

In other words, all counsel proceeded on the basis, express or implied, that Sean’s statement was inadmissible unless the Crown could establish both necessity and reliability. [ 27 ] I note as well that the trial judge made comments and asked questions throughout the submissions of counsel. They reveal that his approach to the question before him was in keeping with the basic rules concerning the admissibility of hearsay evidence.

It is entirely clear that he considered the statement to be inadmissible unless the Crown could establish necessity and reliability. [ 28 ] As a result, I am not persuaded by this aspect of Mr. Gardipy’s submissions. The trial judge made no error of principle in the approach he took to admitting Sean’s statement.

C. Reliability [29] Mr. Gardipy’s main argument with respect to the admissibility of Sean’s statement concerns its reliability. He notes that someindicia of reliability were absent in this case: the statement was not given under oath and Sean was not warned of the consequences ofmaking a false statement. Mr. Gardipy also suggests that Cst. Gillman asked Sean leading questions to which Sean was hesitant to agreeand he says Sean had a reason to lie. Finally, Mr. Gardipy stresses that Sean could not be cross-examined on his statement. [30] There is obviously some merit in Mr.

Gardipy’s concerns but, of course, every case of this sort will involve considerations whichtend to support the reliability of the statement in issue and, on the other hand, considerations which tend to undermine its reliability. Theresponsibility of the trial judge is to take all of the relevant factors into account when making the decision about whether the statement issufficiently reliable to be put before the court. [31] In this case, there were a number of considerations which pointed to the reliability of Sean’s statement. First, as the trial judgefound, the statement was given at Sean’s “own behest”.

During the drive to Rosthern, Cst. Gillman observed that Sean was angry andasked him an open-ended question about what was wrong. Sean then volunteered that Mr. Gardipy had lied about his participation in thehome invasion. When asked if he would provide a statement to that effect, Sean replied affirmatively. The conversation apparently endedat that point. [32] Second, before the statement was taken, Cst. Gillman explained to Sean that he was investigating the offences of assault with aweapon and breaking and entering while committing robbery.

He also explained to Sean that he need say nothing and that he hadnothing to hope from any promise of favour and nothing to fear from any threat. Cst. Gillman went on to indicate that Legal Aid counselwas available if Sean wanted to talk to a lawyer and he then again explained to Sean that he need not say anything. Sean confirmed thathe understood all of this and said he did not want a lawyer. He signed a statement to this effect. [33] Third, while Mr.

Gardipy is quite correct that Sean’s statement was not taken under oath, Sean did confirm at the end of it thateverything he had said was true and that he had not lied to Cst. Gillman. [34] Fourth, Sean made no attempt to exculpate himself at the expense of others. Rather, he admitted his role in the crimes and saidnothing to minimize his own culpability other than to state that he had not assaulted Mr. Scott or held the knife to his throat. He said hewas “not too sure” who was holding the knife.

On this point, I note that the common law has recognized a statement against penalinterest as an exception to the hearsay rule. In order to fall within this exception, the statement (

a) must be made to such a person and insuch circumstances that the declarant should have apprehended a vulnerability to penal consequences, (

b) the vulnerability to penalconsequences must not be too remote and (

c) in totality, the declaration must be one against the declarant’s penal interests. See: R. v.Lucier, (SCC), [1982] 1 S.C.R. 28 at p. 32. Of course, the common law rule operates so as to allow an accused personto tender the hearsay confession of a third party in order to prove his or her own innocence. That, obviously, is not the situation here.

However, the same considerations which are seen to ensure the reliability of a statement against penal interest are nonetheless largely atplay in the present situation, i.e. it is unlikely that a person would lie to implicate himself or herself in a crime. [35] Fifth, the particulars of Sean’s statement were substantially confirmed by the eye witness testimony of Mr. Scott. Like Sean, Mr.Scott identified Sean, Mr. Gamble and Mr. Smallchild as being participants in the home invasion. Like Sean, Mr. Scott saidMr. Smallchild was one of the two individuals who held him in the kitchen. (Mr.

Scott did not recognize the other individual. Sean saidit was Mr. Gardipy.) Like Sean, Mr. Scott recounted that two individuals held him while the other two searched his home and that thetwo doing the searching were Sean and Mr. Gamble. It is true that Sean’s statement and Mr. Scott’s evidence were not identical in allrespects, but this is not surprising given the fast-moving nature of the crimes, the fact Mr. Gardipy was not in the kitchen at all times andthe fact that the assailants kept trying to cover Mr. Scott’s eyes. In the end, Mr.

Scott’s evidence confirmed Sean’s statement and, Ishould note, there was certainly no contradiction between their evidence. [36] What then of Mr. Gardipy’s concerns? It is true, of course, that Sean’s statement was not given under oath and that Cst. Gillman didnot explain to Sean the consequences of not telling the truth. These are valid points. However, while they are relevant to theadmissibility question, they are not determinative of it.

Depending on the whole of the relevant considerations, it is not unusual for anunsworn hearsay statement given in the absence of a perjury warning to be admitted into evidence. See, for example: R. v. B.(K.G.),supra; R. v. Blackman, supra. [37] As to the style in which Cst. Gillman managed the interview with Sean, I do not agree that Sean was “quite hesitant” to answer. Isee no error in the trial judge’s assessment of the matter to the effect that “[Sean] spoke a bit haltingly but I am satisfied that is hismanner”. Cst.

Gillman did ask leading questions at points during the interview, but the trial judge had an opportunity to see and hearwhat questions were put to Sean and to see and hear how they were put to him. The trial judge also had an opportunity to view Sean’sbody language and facial expressions and to hear exactly how he answered Cst. Gillman’s inquires.

[ 38 ] Next, Mr. Gardipy says Sean had a motive to lie. He points to the fact that, when he made the statement, Sean was in custody and had just come from a hearing where he had been denied bail. He emphasizes that, toward the end of his session with Cst. Gillman, the Constable asked Sean why he was making the statement. Sean replied that he did not want to go to jail. This, of course, raises a warning flag, but Sean’s comment must nonetheless be seen in context. [ 39 ] This context has several features. As indicated above, Sean’s original motive for making the statement, as explained to Cst.

Gillman, was that he was angry because Mr. Gardipy had lied, not that he (Sean) did not want to go to jail. Further, while Sean might have had an obvious reason to lie about his own involvement in the crimes, it is not apparent why he would want to lie about the involvement of Mr. Gardipy, his cousin. Perhaps it was to ingratiate himself to the police by confirming the identity of the fourth member of the group that had invaded Mr. Scott’s home. But even this seems to be a rather weak explanation for why Mr. Gardipy was named as the fourth assailant rather than someone else.

I note, in addition, that the relevant context also involves the fact that Sean confirmed Cst. Gillman had not promised him anything or told him that he would not go to jail if he made a statement. In addition, Cst. Gillman wrapped up the interview by telling Sean that what would happen to him was totally up to the Court and Crown counsel. In any event, a motive to lie (even if established) is but one factor to consider in determining the reliability of a statement. It is not determinative of the admissibility question. See: R. v. Blackman , supra , at para. 42 . [ 40 ] Finally, I come to Mr.

Gardipy’s concerns about the inability to cross-examine Sean. This too is a legitimate point and the absence of an opportunity to cross-examine Sean does bear on the reliability of his statement. Nonetheless, this is just one consideration in the constellation of factors bearing on the issue of reliability. Hearsay evidence may be admitted if there is an adequate substitute basis for testing it or if its contents are sufficiently trustworthy. See: R. v. Khelawon , 2006 SCC 57 , [2006] 2 S.C.R. 787 at para. 105 . [ 41 ] The bottom line of this appeal is really quite clear. In R. v.

Blackman , at para. 46 , the Supreme Court indicated that, in a case of this sort, a court of appeal should not simply re-weigh the factors considered by a trial judge in determining the reliability of an out of court statement. Mr. Gardipy’s submissions invite this Court to do precisely that. [ 42 ] I see no error of principle in the trial judge’s analysis or any basis for concluding that his conclusion was unreasonable or unsupported by the evidence as a whole. Accordingly, I can find no reviewable error in his decision that Sean’s statement was sufficiently reliable to be admitted into evidence. IV.

Conclusion [ 43 ] I conclude that the trial judge made no error in admitting Sean’s statement. As a result, Mr. Gardipy’s appeal must be dismissed. DATED at the City of Regina, in the Province of Saskatchewan, this 30 th day of May, A.D. 2012. “Richards J.A.” _____________________ Richards J.A. I concur “Ottenbreit J.A.” ___________________ Ottenbreit J.A. I concur “Caldwell J.A.” __________________ Caldwell J.A.