R v Allary, 2021 SKCA 110

Court of Appeal for Saskatchewan Docket: CACR3370 Citation: R v Allary, 2021 SKCA 110Date: 2021-08-16 Between:Christian AllaryAppellantAndHer Majesty the QueenRespondentBefore: Caldwell, Tholl and Kalmakoff JJ.A.Disposition: Appeal allowedWritten reasons by: The Honourable Mr. Justice ThollIn concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr. Justice KalmakoffOn appeal from: Provincial Court, ReginaAppeal heard: June 4, 2021Counsel: Thomas Hynes for the Appellant Pouria Tabrizi-Reardigan for the Respondent Tholl J.A. I.

INTRODUCTION [1] Two masked men and a woman forced their way into a home, attacked the resident and stole some property. The femaleperpetrator, Amanda Wasacase, was identified through her fingerprints, confessed to committing the robbery and pleaded guilty. In herstatement to the police, she identified Christian Allary as being one of the men who had been with her during the robbery. At Mr. Allary’strial, Ms. Wasacase testified for the Crown but claimed to remember none of the critical events.

As a result, the Crown successfullyapplied to have her police statement admitted under the principled exception to the hearsay rule. The trial judge convicted Mr. Allary ofthe home invasion robbery. [2] On appeal, Mr. Allary submits the trial judge erred in admitting Ms. Wasacase’s statement.

He further contends that the trialjudge shifted the burden of proof and erred in his application of the principles from R v W.(D.), (SCC), [1991] 1 SCR 742[W.(D.)]. [3] For the reasons that follow, it is my view that the trial judge did not err in admitting the statement but did err in his applicationof the principles from W.(D.). As a result, I would allow the appeal and order a new trial. II. BACKGROUND [4] The complainant met Ms. Wasacase on the Plenty of Fish dating application and chatted with her online over a period of onemonth. On June 9, 2018, he invited her to his apartment. Ms.

Wasacase came to the complainant’s home that same day and spent a fewminutes with him before she left. A few seconds after Ms. Wasacase had departed, there was a knock on the door. When the complainantanswered the door, two masked men and a woman barged into the residence. The men attacked him and forced him face down onto thefloor, while the woman gathered items to steal. While holding the complainant down, the assailants punched him in the face, choked him,held a knife to his throat, threatened to kill him, and put a gag in his mouth.

At some point during the assault, one of the intruders droppedhis hat and did not retrieve it before he left. The complainant was unable to identify any of the three individuals because the men weremasked and he did not see the woman. He only knew the third person was a woman because he had heard her voice. The attack lastedapproximately 20 minutes and several valuable items were stolen from the apartment. [5] The police took fingerprints from a water glass in the apartment and, with the aid of a photograph from the Plenty of Fishwebsite, identified Ms.

Wasacase as the person who had been in the complainant’s residence for the arranged meeting on June 9, 2018.Twenty days later, Ms. Wasacase was arrested and she provided a warned, video-recorded statement to the police in which she admitted tothe robbery and named Mr. Allary as one of the men who had assaulted the complainant. During the statement, she also told theinterviewer that she had used a computer at the library to contact the complainant on the day of the robbery and that she had run intoMr. Allary while she was there.

The police investigator retrieved surveillance footage from the library for the day in question, whichshowed Mr. Allary leaving the library very shortly after Ms. Wasacase. In the video, Mr. Allary was wearing a hat that resembled the oneleft behind in the apartment. [6] Mr. Allary was charged with breaking and entering a dwelling house and committing the indictable offence of robbery,contrary to s. 348(1)(

b) of the Criminal Code. III. VOIR DIRE AND TRIAL [7] The facts of the robbery itself were not in dispute. The issue at trial was whether the Crown had proven that Mr. Allary was

one of the male assailants. After brief testimony from the complainant, the Crown called Ms. Wasacase as a witness. She admitted tohaving pleaded guilty to the robbery and to having been sentenced for the offence, but was generally an uncooperative witness. Shetestified that she did not remember, and did not want to remember, the events in question and denied knowing anyone named “ChristianAllary”. When shown the video footage from the library, Ms. Wasacase refused to identify herself or anyone else appearing in it.

She half-heartedly recognized herself in the video of her police interview, but testified that she did not remember providing the statement. At thatpoint in her testimony, the Crown applied to have her video-recorded police statement admitted under the principled exception to thehearsay rule and a voir dire was held for that purpose [Statement Voir Dire]. [8] Ms. Wasacase and the police officer who conducted the interview were the Crown witnesses on the Statement Voir Dire.After being recalled to testify on the Statement Voir Dire, Ms.

Wasacase testified that she thought it was her in the library video andreluctantly admitted she was at the library, had messaged a person through the Plenty of Fish application while at the library and had goneto meet that person. In her statement to the police, Ms. Wasacase identified Mr. Allary as being one of the two men who was with herduring the robbery. However, during her testimony, she stated that she had blocked out what occurred at the residence. The trial judgegranted the Crown permission, pursuant to s. 9(2) of the Canada Evidence Act, RSC 1985, c C-5, to cross-examine Ms. Wasacase.

Duringthe Crown’s cross-examination, Ms. Wasacase continued to assert that she did not want to remember the events in question. She persistedin her denial that she had ever met someone named “Christian Allary”. During cross-examination by defence counsel, Ms. Wasacasetestified that she was using crystal methamphetamine every day around the time of the robbery. She further stated that she did not know ifshe was telling the truth or not during the police interview. [9] At the conclusion of the Statement Voir Dire, the trial judge admitted Ms.

Wasacase’s video-recorded police statement [VoirDire Decision], concluding that it met the test of both necessity and reliability as set out in R v Bradshaw, 2017 SCC 35, [2017] 1 SCR865 [Bradshaw]. In the course of his oral decision, the trial judge observed that the statement was video recorded, commented on thecircumstances under which the statement had been taken, noted the absence of coercion, analyzed the possible effects of drug use onMs.

Wasacase, examined the potential for fabrication, and looked at the consistencies and inconsistencies of her statement in relation tothe corroborating evidence. [10] During the Statement Voir Dire, a police officer had provided recognition evidence regarding the identification ofMs. Wasacase and Mr. Allary in the library video. The trial judge admitted that video and the recognition evidence in the trial proper. Healso admitted the hat that had been left behind by one of the assailants. [11] Mr. Allary testified in his own defence. He stated that he is Ms.

Wasacase’s second cousin, but he had only met her twice andhad interacted very briefly on those occasions. In cross-examination, he allowed that he may have seen her on more than two occasions,but only the two he had described stuck out for him. Mr. Allary agreed that he had been at the library on the day in question, and that hewas depicted in the video leaving approximately one minute after Ms. Wasacase departed, but testified that he did not see or speak to her atthe library. He denied being involved in the robbery. When cross-examined about the hat he was wearing in the library video, Mr.

Allaryrefused to agree that it was the same hat as the one that had been found in the apartment after the robbery. He also refused to acknowledgethe similarities in the markings on the hat that was left behind and the hat he was wearing in the library video. [12] The matter was adjourned for argument. On the return date, immediately after the conclusion of counsel’s closing submissions,the trial judge provided his oral decision. He began his analysis by commenting on Ms. Wasacase’s testimony, noting that she was not aforthright or cooperative witness. The trial judge spent considerable time analyzing Ms.

Wasacase’s video statement and framed thequestion to be answered regarding it as follows: “So, I am left essentially with the video-taped statement being her evidence. And withoutthat evidence, the Crown does not have a case against Mr. Allary. The question is, is that evidence acceptable to the Court and whatweight should be given to it?” [13] The trial judge warned himself that the principles from R v Vetrovec, (SCC), [1982] 1 SCR 811 [Vetrovec],applied to his analysis of Ms. Wasacase’s evidence. After briefly commenting on Mr. Allary’s testimony, he returned to his analysis ofMs. Wasacase’s video statement.

He noted that she did not have a strong motive to fabricate when she identified Mr. Allary as one of theperpetrators. The trial judge then restated the question to be answered, setting it out as follows: “The question is whether her evidence,given under these circumstances is enough to carry the Crown’s case and prove beyond a reasonable doubt that he was one of the otherparticipants in this offence”. [14] The trial judge continued the analysis of Ms. Wasacase’s video statement, noting that corroborative evidence for her statementimplicating Mr.

Allary was found in the library video where they were depicted as leaving the library mere moments apart. He alsoexamined the evidence regarding the hat, finding as a fact that the hat had been left in the apartment by one of the male perpetrators. Afterdescribing the characteristics of the hat in detail, the trial judge determined there were numerous points of similarity between the hat leftat the scene and the one Mr. Allary was wearing in the library video and found that the hats were “extremely similar”.

He then concludedas follows: If that [the hat] was the only identification, it would not be sufficient by any means. However, it does not have to be the identifying featurein itself, it simply is corroboration. A circumstance consistent with Ms. Wasacase’s evidence. As I have said, Ms. Wasacase had dealt withthe charge and was no longer in jeopardy of anything. She appeared in court, she gave evidence, she was uncooperative, but shenonetheless did not, when cross-examined, change her evidence from what was on the video. She did not say that she implicatedMr. Allary by mistake or intentionally or improperly.

She watched the whole video. So, she knew what was on the video and she knewthat the video was potential evidence. So, considering the video as evidence and these items of corroboration and the circumstances where Ms. Wasacase had dealt with thecharge leads me to conclude that her evidence in the video with respect to the question of who participated in this robbery with her iscredible. And I accept it and I find that it is sufficient to prove the case against Mr. Allary beyond reasonable doubt. So, I find Mr. Allary guilty of the offence before the Court. IV. ISSUES

[15] The following issues arise in this matter: (

a) Did the trial judge err in admitting Ms. Wasacase’s video-recorded statement under the principled exception to the hearsayrule? (

b) Did the trial judge err in his application of the principles from W.(D.)? V. ANALYSIS A. Admission of Ms. Wasacase’s statement [16] Mr. Allary submits Ms. Wasacase’s statement should not have been admitted into evidence. He asserts the trial judgemisunderstood the role of corroborative evidence in an application to admit a statement under the principled exception to the hearsay rule.He contends that, without Ms. Wasacase’s statement, there was insufficient evidence regarding identity and an acquittal should be enteredby this Court.

The Crown asserts that the trial judge did not err by admitting the evidence because it met the two criteria required underthe principled exception to the hearsay rule. [17] The out-of-court statement given by Ms. Wasacase to the police is hearsay. As such, it was presumptively inadmissible at thetrial to prove the truth of its contents: R v Khelawon, 2006 SCC 57 at paras 34–35, [2006] 2 SCR 787 [Khelawon].

However, under theprincipled exception to the hearsay rule, such evidence can be admitted if it meets the twin criteria of necessity and threshold reliability,subject to a trial judge’s discretion to still exclude it if its prejudicial effect outweighs its probative value: Bradshaw at para 23, Khelawonat para 42 and R v Starr, 2000 SCC 40 at paras 2–3, [2000] 2 SCR 144.

Once admitted, the weight to be given to a hearsay statementremains an open issue for a trial judge to assess. [18] The admissibility of evidence under the principled exception to the hearsay rule is a question of law, reviewable on a standardof correctness.

Absent an error in principle, however, a trial judge’s determination of threshold reliability is entitled to deference: R vCouture, 2007 SCC 28 at para 81, [2007] 2 SCR 517 [Couture]; R v Youvarajah, 2013 SCC 41 at para 31, [2013] 2 SCR 720; and R vBurns, 2016 SKCA 67 at para 11, 337 CCC (3d) 523. [19] In my view, the trial judge did not err by determining the hearsay statement by Ms. Wasacase met the requirements of necessityand threshold reliability, and did not err in admitting it. [20] The necessity of the evidence is not challenged by Mr. Allary. A review of Ms.

Wasacase’s testimony demonstrates that thiscriterion was met. She stated that she could not remember, or would not remember, the critical events. She could not be budged from thatposition despite being declared an adverse witness and being subjected to cross-examination by both counsel. The only way her identityevidence could be made available to the court was through the admission of her video-recorded police statement. [21] Mr. Allary challenges the trial judge’s finding that the evidence satisfied the requirement of threshold reliability.

He argues thatthe corroborative evidence did not show that the only likely explanation for the inculpatory statement was that Ms. Wasacase was beingtruthful. [22] There are two routes for establishing threshold reliability: procedural reliability and substantive reliability.

These two pathswere described by Karakatsanis J. in Bradshaw: [27] The hearsay dangers can be overcome and threshold reliability can be established by showing that (1) there are adequate substitutesfor testing truth and accuracy (procedural reliability) or (2) there are sufficient circumstantial or evidentiary guarantees that the statementis inherently trustworthy (substantive reliability) … . [28] Procedural reliability is established when “there are adequate substitutes for testing the evidence”, given that the declarant has not“state[d] the evidence in court, under oath, and under the scrutiny of contemporaneous cross-examination” (Khelawon, at para. 63). …Substitutes for traditional safeguards include a video recording of the statement, the presence of an oath, and a warning about theconsequences of lying … .

However, some form of cross-examination of the declarant, such as preliminary inquiry testimony … or cross-examination of a recanting witness at trial (B.(K.G.) [ (SCC), [1993] 1 SCR 740]; R. v.

U.(F.J.), (SCC),[1995] 3 S.C.R. 764), is usually required … … [30] A hearsay statement is also admissible if substantive reliability is established, that is, if the statement is inherently trustworthy … .To determine whether the statement is inherently trustworthy, the trial judge can consider the circumstances in which it was made andevidence (if any) that corroborates or conflicts with the statement … . [31] While the standard for substantive reliability is high, guarantee “as the word is used in the phrase ‘circumstantial guarantee oftrustworthiness’, does not require that reliability be established with absolute certainty” (Smith, [ (SCC), [1992] 2 SCR915] at p. 930). … Substantive reliability is established when the statement “is made under circumstances which substantially negate thepossibility that the declarant was untruthful or mistaken” (Smith, at p. 933); “under such circumstances that even a sceptical caution wouldlook upon it as trustworthy” (Khelawon, at para. 62, citing Wigmore, [Evidence in Trials at Common Law (2nd ed. 1923), vol.

III] atp. 154); when the statement is so reliable that it is “unlikely to change under cross-examination” (Khelawon, at para. 107; Smith, atp. 937); when “there is no real concern about whether the statement is true or not because of the circumstances in which it came about”(Khelawon, at para. 62); when the only likely explanation is that the statement is true (U.(F.J.), at para. 40). (Emphasis in original) [23] In the matter at hand, the trial judge did not refer to the terms procedural reliability or substantive reliability in his analysis; but

an examination of his reasons reveals that he was relying on aspects of both concepts, although substantive reliability dominated hisanalysis. While these two paths to threshold reliability are described as separate concepts in Bradshaw, they are not mutually exclusive. Atrial judge is entitled to draw on elements from each of the two paths to determine that the proposed hearsay statement meets therequirement of threshold reliability: Bradshaw at para 32, Khelawon at para 65 and Couture at para 80.

However, as noted byKarakatsanis J. in Bradshaw, “Great care must be taken to ensure that this combined approach does not lead to the admission of statementsdespite insufficient procedural safeguards and guarantees of inherent trustworthiness to overcome the hearsay dangers” (at para 32). [24] Mr. Allary asserts that the statement was not procedurally reliable. He notes that it was not made under oath and argues that,given Ms. Wasacase’s professed lack of memory, there was no ability to cross-examine her despite her presence in the witness stand.

Inthis regard, the trial judge made the following findings in the Statement Voir Dire: There was not the K.G.B. [ (SCC), [1993] 1 SCR 740] details that focus the witness in the statement on the need for truthand the consequences of a lack of truth. It was simply a straightforward statement taken. It was videotaped, of course. The video showsthe constable who was in court sitting across from a table. Ms. Wasacase is shown in a somewhat lethargic state with a blanket wrappedaround her at the other side of the table. There is no obvious coercion or confrontation of the witness to elicit information.

She is, ofcourse, questioned, but the statement was proceeded by the usual cautions about giving a statement and the fact that nothing had beenpromised. That comes from the constable and I believe it’s also in the statement, but I would have to watch the statement at the beginningto confirm that particular point. But nonetheless, the statement does not have any apparent flaws caused by aggressive questioning orhighly suggestive and leading questions. The dangers, of course, in the statement are that the witness might fabricate things to minimize her participation in an event. She had notyet pleaded guilty.

And so she was in jeopardy of being charged and she had been charged at the time she was being interviewed. But theevidence -- or her -- but her presence in court gave her the opportunity to deny the statement if she wished to deny it for reasons of untruthor exaggeration or improper questioning. And her position was she didn’t remember anything. So, she doesn’t take the position that thisstatement is false or that it was improperly obtained, that’s clearly her position in court. She just doesn’t remember it. And she wasn’tcooperative in her evidence, in my opinion, in court.

But nonetheless, she did not take any opportunity to raise questions about the propriety of the statement or the accuracy of the statement,or give motives herself for why that statement might not be accurate. She had that opportunity though. [25] The statement was video recorded and was provided to a police officer after a standard police caution, indicating that it may beused as evidence. These factors assist with procedural reliability. On the other hand, the evidence was not given under oath and, despiteMs.

Wasacase’s presence at the trial, the opportunity to test her evidence through cross-examination was not meaningful in thecircumstances. As noted in the excerpt directly above, and in the trial judge’s conclusion set out below, the trial judge recognized thesefrailties with regard to procedural reliability and properly took them into account. However, it is clear from his reasons that he relied muchmore heavily on his evaluation of substantive reliability than he did on procedural reliability. Given my conclusions on substantivereliability, it is not necessary to pursue procedural reliability any further.

For an expansive discussion of that aspect of threshold reliability,see R v Anaquod, 2021 SKCA 111. [26] In accordance with the focus of the trial judge’s analysis, Mr. Allary’s main argument on threshold reliability relates tosubstantive reliability. He contends the trial judge overstated the effect of the corroborative evidence, resulting in an error in principle. Indealing with corroborative evidence, the trial judge stated the following: So, there are a number of things in the statement that are consistent with what [the complainant] said. And there are some inconsistenciesalso.

It is on the whole much more consistent than inconsistent though. First of all, Ms. Wasacase is serving a sentence based upon the conviction for the events that are the subject of this proceeding. So, shedoesn’t have a particular motive to either deny the events or distort the events today. But she just finds them too disturbing and doesn’twish to remember them. That is what she said in court. There is, of course, the fingerprint in the -- on the glass that shows that she was present.

And also the fact she’s pleaded guilty I thinkprecludes any question of challenging that. … So, she did provide details that are very similar to what [the complainant] said. First of all she said he was a person of East Indian orPakistani background. They had met on a dating website. They had met obviously for the purposes relating to the website, which couldinclude sex or not. But [there] was some kind of attraction between persons of opposite sexes. So, that aspect of her attendance there isconsistent. He indicated that they were fooling around and she said she found offence of his sexual advances.

And she describes in the video how her friend, who she identifies as Christian Allary and another friend who is not identified burst in.[The complainant] says they came moments after she left, that’s not a large difference, but they came in and they immediately proceededto affect what was a robbery and an assault. Now, Ms. Wasacase does in her evidence suggest that they were coming to her rescue. And that would be consistent with a motive tominimize her participation or justify her participation in this, but it’s not a large difference with [the complainant’s] evidence.

The nature of the assault was short. [The complainant], I think referred to 20 minutes at some point. Some persons are good at estimatingtime, other persons are not. I doubt if this took 20 minutes or anything close to it. But there was an assault and there was physical signs ofit, which the investigating officer observed and which photographs corroborate. So, I believe that a significant factor supporting the truth of the statement is the similarity with [the complainant’s] evidence.

There are notlikely -- the … Bradshaw case, excuse me, inconsistent or contradictory statement[s], though the similarity of the statement to what [thecomplainant] said is not perfect and witnesses in stressful events, even when they are trying to be absolutely truthful, seldom are able torecount the incident in exactly the same detail as others. So, there is a significant bolster to the credibility and truth -- and possible

truthfulness of the statement by the details that are similar. No, a detail which was volunteered in the statement, that is corroborated by the video, is the presence at the library shortly before this. They had met, it seems, at the library, according to the statement. Now, the video doesn’t show Ms. Wasacase and Mr. Allary interacting together, but the statement -- not the statement, the video from the library does place them in proximity in the place that she said was where they met at approximately the same time. So, it is corroboration. And I think it is possible to say it is Mr.

Allary in the video, because of the distinct mark he has on the face and also some other details. And similarly with Ms. Wasacase. And she did admit that was her in the video. So, the video from the library is a corroboration of the statement as well. [ 27 ] The trial judge then concluded as follows: The question of whether this statement can be considered to have sufficient circumstantial and internal aspects that support truth as opposed to -- as opposed to concoction or -- or distortion are very high.

Considering paragraphs 54 to 57 of the Bradshaw case, I believe that the test is met and the truth of this statement is apparent for all of the circumstances that I have outlined. So, I would rule that the statement does meet the tests, notwithstanding that it was not preceded by the K.G.B . warnings or an oath or any other types of steps that are sometimes referred to for showing reliability and truthfulness. But I believe the circumstances support it. [ 28 ] Corroborative evidence may be properly taken into account when considering the substantive reliability of a hearsay statement.

As correctly observed by the trial judge, the process to be followed in assessing substantive reliability and the effect of corroborative evidence is set out in Bradshaw : [56] Clarifying when corroborative evidence can be relied on to establish substantive reliability is not a departure from the functional approach to the admissibility of hearsay. There is no bright-line rule restricting the type of corroborative evidence that a trial judge can rely on to determine that substantive reliability is established.

In all cases, the trial judge must consider the specific hearsay dangers raised by the statement, the corroborative evidence as a whole, and the circumstances of the case, to determine whether the corroborative evidence (if any) can be relied on to establish substantive reliability. [57] In sum, to determine whether corroborative evidence is of assistance in the substantive reliability inquiry, a trial judge should 1. identify the material aspects of the hearsay statement that are tendered for their truth; 2. identify the specific hearsay dangers raised by those aspects of statement in the particular circumstances of the case; 3. based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement; and 4. 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. … [71] … corroborative evidence will only assist in establishing the substantive reliability of the re-enactment statement if it shows, when considered in the circumstances of the case, that the only likely explanation is that Thielen was truthful about Bradshaw’s involvement in the murders.

When the hearsay danger is sincerity, substantive reliability is only established when the circumstances and corroborative evidence show that the possibility that the declarant lied is substantially negated, that “even a sceptical caution would look upon [the statement] as trustworthy” (Wigmore, at p. 154; Khelawon , at para. 62 ; Couture , at para. 101 ).

Corroborative evidence or circumstances showing that the statement is inherently trustworthy are required to rebut the presumption of inadmissibility. [ 29 ] Here, the trial judge’s reasons reveal that he followed the steps set out in paragraph 57 of Bradshaw and evaluated the evidence that he found to be corroborative of the statement. He looked for independent evidence that corroborated the key parts of the evidence given by Ms. Wasacase in her statement. The trial judge did not err in identifying the principles to be applied. Nonetheless, Mr.

Allary argues that the trial judge erred in principle by failing to recognize that there was good reason to believe Ms. Wasacase had lied about his participation in the robbery and had a motive to minimize her own role in the crime. Relying on paragraph 69 of Bradshaw , he asserts that it is extremely challenging to determine whether an unsavoury witness – of the nature described in Vetrovec – is trustworthy. He says that the alternative explanation to Ms. Wasacase having told the truth is that she lied. [ 30 ] I cannot give effect to this argument. The trial judge explicitly addressed Ms.

Wasacase’s potential motive to minimize her own involvement along with the possibility of fabrication and discussed these factors in his reasons. This aspect of the matter was also the subject of questioning by the trial judge during submissions at the conclusion of the Statement Voir Dire . The fact that Ms. Wasacase was the female who was involved in the robbery was front and centre throughout the case. I note that Ms. Wasacase appears to have had little to gain from falsely identifying Mr. Allary as one of the perpetrators.

She acknowledged her participation in the robbery during her statement to the police and her identification of Mr. Allary did nothing to divert blame away from her. This significantly diminished any Vetrovec concerns. [ 31 ] The trial judge examined the evidence and found that it corroborated key aspects of Ms. Wasacase’s statement. This included the testimony of the complainant regarding the meeting arranged through the Plenty of Fish application and the description of the robbery. While the complainant’s evidence provided only general corroboration, and could not directly support Ms.

Wasacase’s identification of Mr. Allary as one of the perpetrators, it did help to address the overall truthfulness of the statement by confirming many other details. This responded to Mr. Allary’s argument on the Statement Voir Dire , where he asserted that the statement was generally not reliable because of Ms. Wasacase’s drug use and poor memory.

[32] Importantly, as observed by the trial judge, the video footage from the library provided a significant piece of corroboration onthe question of identity, supporting Ms. Wasacase’s claim that Mr. Allary was one of the male perpetrators. Ms. Wasacase’s use of acomputer at the library to set up the meeting with the complainant, Mr. Allary’s contemporaneous presence at the library, his prompt exitafter Ms. Wasacase’s departure and the similarity of the hat worn by Mr. Allary, as compared to the one found at the apartment,corroborated the hearsay statement.

Additionally, the trial judge quite properly stated that there were inconsistencies in the evidence andnoted that the corroborative evidence was not perfect; but, overall, he determined the evidence supported a finding of threshold reliability. [33] In my view, the trial judge did not commit an error in principle in determining that Ms. Wasacase’s police statement met therequirement of threshold reliability. He identified the correct test, examined evidence he was permitted to examine and reached aconclusion regarding threshold reliability that relied mainly on his evaluation of substantive reliability.

Given the deferential standard ofreview that applies, absent an error in principle, this ground of appeal cannot succeed. B. Application of W.(D.) [34] Mr. Allary submits the trial judge focussed solely on Ms. Wasacase’s credibility, did not assess his evidence, and treated thetrial as a credibility contest. He asserts the trial judge erred by failing to apply the principles from W.(D.).

The Crown says that a failure tomention W.(D.), or its principles, is not an error and argues that the trial judge properly applied the requisite burden of proof. [35] When an accused testifies in their own defence, and their testimony differs significantly from another witness’s testimony,credibility issues arise and the principles from W.(D.) are engaged.

In W.(D.), Cory J. – in what is likely the most frequently cited passagein Canadian criminal law jurisprudence – stated the following regarding the analysis that should be brought to bear in such a circumstance(at 757–758): Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trialjudge might well instruct the jury on the question of credibility along these lines: First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. If that formula were followed, the oft-repeated error which appears in the recharge in this case would be avoided. The requirement that theCrown prove the guilt of the accused beyond a reasonable doubt is fundamental in our system of criminal law.

Every effort should bemade to avoid mistakes in charging the jury on this basic principle. Nonetheless, the failure to use such language is not fatal if the charge, when read as a whole, makes it clear that the jury could not havebeen under any misapprehension as to the correct burden and standard of proof to apply: R. v.

Thatcher, [ (SCC), [1987] 1SCR 652]. [36] An assertion that a trial judge failed to apply the burden of proof, as required in W.(D.), raises a question of law that isreviewable on the standard of correctness: R v B.G.S., 2010 SKCA 24, 346 Sask R 150 [B.G.S.]. [37] In the matter at hand, the trial judge did not refer to W.(D.) or list the principles from it.

But it is not an error of law not to referto that case by name or not to paraphrase its requirements: B.G.S. at para 8 and R v C.L.Y., 2008 SCC 2 at para 7, [2008] 1 SCR 5.Additionally, trial judges are presumed to know the law and are not required to explicitly self-instruct on every principle of law uponwhich they rely: R v John, 2021 SKCA 83 at para 65. It is, however, an error of law to fail to apply the general principles that arise fromW.(D.) when assessing whether the Crown has met its burden of proof in a case where the accused has testified.

More specifically, it is anerror of law for a trial judge not to turn their mind to the possibility that, despite the acceptance of the evidence of a Crown witness andthe rejection of the evidence of the accused, there might still be a reasonable doubt as to the guilt of the accused: R v Sheppard, 2002 SCC26 at para 65, [2002] 1 SCR 869, and R v Mah, 2002 NSCA 99 at paras 41–42, 167 CCC (3d) 401. [38] In my view, the trial judge erred in his assessment as to whether the Crown had met its burden of proof by stopping his analysisafter he concluded that the video-recorded evidence of Ms. Wasacase was credible.

In doing so, he erred by not considering whether theremainder of the evidence, including the testimony of Mr. Allary, raised a reasonable doubt. [39] The only element of the offence that was contested was the identity of Mr. Allary as one of the males who committed therobbery. As set out above, the trial judge extensively assessed Ms. Wasacase’s credibility and described the ultimate question to beanswered in the following terms: “The question is whether [Ms.

Wasacase’s] evidence, given under these circumstances is enough to carrythe Crown’s case and prove beyond a reasonable doubt that he was one of the other participants in this offence”. [40] After conducting a thorough and comprehensive analysis of Ms. Wasacase’s evidence, including considering the evidenceprovided in the form of the hat and the library video, the trial judge concluded his reasons as follows: So, considering the video as evidence and these items of corroboration and the circumstances where Ms.

Wasacase had dealt with thecharge leads me to conclude that her evidence in the video with respect to the question of who participated in this robbery with her iscredible. And I accept it and I find that it is sufficient to prove the case against Mr. Allary beyond reasonable doubt. So, I find Mr. Allary guilty of the offence before the Court. [41] The trouble with this conclusion is that it does not reveal any consideration by the trial judge of Mr. Allary’s testimony and hiscredibility. In the trial decision, the only reference to Mr. Allary’s evidence, which came earlier in the reasons, was as follows:

Now, Mr. Allary denies having participated in this. He admits that he and Ms. Wasacase are second cousins. He initially stated that he barely knew her. He’d only met her twice and those incidents were years apart. Under those circumstances, he might barely recognize her. Now, some persons who are cousins are close friends, other persons who are cousins are not at all close and are near strangers. Mr. Allary started out saying that they were very close to being strangers and it was purely a coincidence that they happened to be at the Regina Public Library on the same day in question.

Now, he did retreat from that position and admit that there was greater contact and acquaintanceship than was the case initially. Part of his evidence being the denial of any participation would naturally minimize any friendship or association he has with Ms. Wasacase. [ 42 ] Although there was not much evidence from Mr. Allary for the trial judge to grapple with, it does not appear that he addressed his testimony in any meaningful manner. The reasons of the trial judge demonstrate a comprehensive analysis of Ms.

Wasacase’s credibility; but further reveal that, once she was found to be credible, a finding of guilt followed. At no point did the trial judge indicate that he rejected or doubted Mr. Allary’s testimony. While such a rejection might be seen as being implicit in his acceptance of Ms. Wasacase’s testimony, this assumption still does not address the issue of whether the trial judge asked himself if Mr. Allary’s evidence, or the evidence as a whole, raised a reasonable doubt.

As noted by McLachlin C.J.C. in R v R.E.M. , 2008 SCC 51 at para 17 , [2008] 3 SCR 3, trial judges do not have to demonstrate in a mechanical way how they arrived at their conclusions. However, they are required to turn their minds to the general propositions set out in W.(D.) when determining whether the Crown has proven guilt beyond a reasonable doubt. The trial judge’s reasons indicate that he did not do so. As a result, in my view, this ground of appeal has merit. The conviction must be set aside and a new trial ordered. VI.

CONCLUSION [ 43 ] The appeal is allowed, the conviction is set aside and a new trial is ordered. “Tholl J.A.” Tholl J.A. I concur. “Caldwell J.A.” Caldwell J.A. I concur. “Kalmakoff J.A.” Kalmakoff J.A.