R v Anaquod, 2021 SKCA 111

Court of Appeal for Saskatchewan Docket: CACR3336 Citation: R v Anaquod , 2021 SKCA 111 Date: 2021-08-16 Between: Lyall Marlin Anaquod Appellant And Her Majesty the Queen Respondent Before: Jackson, Ottenbreit and Caldwell JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Madam Justice Jackson In concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr. Justice Caldwell On appeal from: Provincial Court, Regina Appeal heard: May 13, 2021 Counsel: Thomas Hynes for the Appellant Kelly Kaip for the Respondent Jackson J.A. I.

Overview [ 1 ] A routine stolen property investigation at a private residence led to a police standoff. Shots were fired from the home. One shot narrowly missed a police officer. A male voice could be heard shouting death threats at the police. [ 2 ] Ten hours later, Lyall Anaquod and Jocelynn McKay emerged from the residence. When the police searched the home, they determined that Mr. Anaquod and Ms. McKay had been the only occupants. The police took both of them into custody. [ 3 ] The next day, Ms. McKay gave a video-recorded statement to a police officer.

She was advised that she was being questioned with respect to possible charges involving stolen property, weapons, and breaches of recognizance. She was advised of her rights to counsel and to silence. She declined counsel. In her statement, she said Mr. Anaquod had been in control of the residence and what had happened that night. According to her, he had threatened the police and had fired a gun out the window. She was released later that day on her own recognizance. As time progressed, the only offence with which Ms. McKay was charged was a breach of a recognizance for being in contact with Mr.

Anaquod on the day of the standoff. [ 4 ] Based in part on Ms. McKay’s statement, and on the police evidence, Mr. Anaquod was charged with the following eight Criminal Code offences: (

a) intentionally discharging a firearm while being reckless as to the life or safety of other persons, contrary to s. 244.2(1)(b); (

b) pointing a firearm at another person, contrary to s. 87; (

c) possessing a weapon for a purpose dangerous to the public, contrary to s. 88; (

d) uttering threats, contrary to s. 264.1(1); (

e) possessing a firearm while prohibited, contrary to s. 117.01(1); (

f) possessing ammunition while prohibited, contrary to s. 117.01(1); (

g) failing to comply with the terms of a recognizance, contrary to s. 145(3); [1] and (

h) unlawfully confining Ms. McKay, contrary to s. 279(2). He pleaded not guilty to these charges. [ 5 ] At Mr. Anaquod’s trial, Ms. McKay was a reluctant witness for the Crown. The trial had to be adjourned several times to secure her attendance. When she ultimately took the stand, she swore to tell the truth. However, when Crown counsel was examining her in-chief, she denied any memory of the statement she had made earlier. She admitted being at the house with Mr.

Anaquod and she remembered the tear gas, but her testimony was largely composed of the repeated phrase, “I do not remember” and denials of what she had said. She also stated she was “not a rat”. [ 6 ] When Ms. McKay did not repeat or adopt her video-recorded statement, it was necessary for the Crown to tender it as hearsay, thereby engaging a common definition of the term, i.e., an out-of-court statement not adopted by the maker but, nonetheless, being tendered for the truth of its contents. Since hearsay is considered presumptively inadmissible, Ms.

McKay’s statement could only be admitted into evidence if it satisfied the application of what has come to be known as the principled exception to the hearsay rule. According to that exception, Ms. McKay’s statement would only be admissible if it attained a certain threshold level of reliability during a

voir dire held for that purpose. [ 7 ] A voir dire was held to determine whether Ms. McKay’s statement met the threshold of either procedural or substantive reliability, according to the criteria for admissibility laid out in R v Bradshaw , 2017 SCC 35 , [2017] 1 SCR 865 [ Bradshaw ].

Threshold reliability can be achieved on a voir dire if the Crown proves on a balance of probabilities that “(1) there are adequate substitutes for testing truth and accuracy (procedural reliability) or (2) there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability)” (at para 27). [ 8 ] During the voir dire , Ms. McKay was again examined in-chief and continued to be largely uncommunicative. However, she recognized herself and the interviewing officer, Cst. Dunford, on the video.

She also admitted to several more details, including moving the guns, handling them and being present when a gun was discharged within the house itself. She denied seeing Mr. Anaquod point a gun at anybody. [ 9 ] When Ms. McKay was being cross-examined during the voir dire , defence counsel asked her whether she had lied to the police when she said Mr. Anaquod had fired the guns. She agreed that she had been lying, but contradicted herself on some details. She was never asked if she had been the person who had fired the guns.

The defence led no evidence on the voir dire . [ 10 ] In oral reasons following the voir dire , the trial judge held that Ms. McKay’s statement to the police was necessary and sufficiently reliable to be admitted, notwithstanding her denial of the material aspect of it, i.e., that Mr. Anaquod had fired a gun out the window at the police: R v Anaquod (9 October 2018) Regina (Sask PC) [ Voir Dire Decision ]. [ 11 ] The trial judge made this determination on the basis that Ms.

McKay’s statement was procedurally reliable; that is to say, there were adequate substitutes for testing its truth and accuracy such that it could be considered sufficiently reliable to be placed before the trier of fact as part of the whole of the evidence. The trial judge was satisfied that this threshold for admissibility had been met because of the way the police had taken the statement and the sufficiency of Ms. McKay’s cross-examination during the voir dire . [ 12 ] Having found Ms.

McKay’s statement was procedurally reliable, the trial judge did not go on to consider whether it was also substantively reliable. In other words, he did not determine whether an alternative basis existed upon which the statement might have been admitted, notably whether the police officers’ testimony corroborated the material aspects of her statement. [ 13 ] After the Crown closed its case in the trial proper, the trial judge reserved judgment. In oral reasons, he convicted Mr.

Anaquod of all charges except for the unlawful confinement charge for which an acquittal was entered: R v Anaquod (30 July 2019) Regina (Sask PC) [ Conviction Decision ]. In convicting Mr. Anaquod of three of the charges, notably those under s. 244.2(1) (b), s. 87 and s. 88 of the Criminal Code , he relied upon Ms. McKay’s statement that Mr. Anaquod was in possession of the gun that had fired the shots from the window and that he had in fact fired the gun at the police. The balance of the offences did not depend upon Ms. McKay’s statement to the police. [ 14 ] With respect to sentence, Mr.

Anaquod was sentenced to a term of imprisonment of eight years for the charge under s. 244.2(1) (b): R v Anaquod (23 December 2019) Regina (Sask PC) [ Sentencing Decision ]. For the remaining offences, Mr. Anaquod was sentenced to lesser concurrent sentences except for the offences under s. 117.01(1), which added a consecutive sentence of three months. [ 15 ] Mr. Anaquod appeals his convictions with respect to the charges under s. 244.2(1)(b), s. 87 and s. 88 only. He submits that these convictions should be quashed as they depend on the admissibility of Ms. McKay’s statement. Mr.

Anaquod challenges the trial judge’s finding that her statement was procedurally reliable because he says Ms. McKay was not truly available for cross-examination. He asserts further that it was not open to the trial judge to find the statement to be substantively reliable because of the possibility that Ms. McKay had implicated him for the purpose of protecting herself and the material aspects of her statement could not be corroborated. With respect to the four remaining offences, Mr. Anaquod accepts that they do not turn on Ms. McKay’s statement.

He does not appeal those convictions. [ 16 ] For the reasons that follow, I conclude that the trial judge did not err by finding Ms. McKay’s statement to be procedurally reliable. In light of this conclusion, it is not necessary for me to consider whether her statement was also substantively reliable and whether it could have been admitted on that basis as well. In short, the conviction appeal must be dismissed. [ 17 ] Mr. Anaquod also appeals the eight-year sentence imposed for the s. 244.2(1)(

b) offence. When fixing this sentence, the trial judge relied on R v Whitehead , 2017 SKQB 263 [ Whitehead ], and R v Arcand , 2019 SKQB 131 [ Arcand ]. These decisions concern the offence of discharging a firearm with intent , contrary to s. 244(1) of the Criminal Code , as opposed to recklessly doing so, which is the operative aspect of the s. 244.2(1) (

b) offence. Specifically, Mr. Anaquod submits that the trial judge erred by equating the gravity of the offence of recklessly discharging a firearm ( s. 244.2(1) (b)) with the gravity of the offence of intentionally discharging a firearm ( s. 244(1) ). Mr. Anaquod asserts that since the gravity of the two offences is not the same, the trial judge applied a higher sentencing range than was appropriate, which led him to impose a longer sentence than was warranted. [ 18 ] With respect to the sentence, I do not find that the trial judge erred in any way that had an impact on the result.

Consequently, the sentence appeal is also dismissed. II. Issues [ 19 ] Counsel for Mr. Anaquod has identified the following two issues: (

a) Did the trial judge err by finding Ms. McKay’s statement to be procedurally reliable? (

b) Did the trial judge err in his assessment of the gravity of the offence under s. 244.2(1) (

b) of the Criminal Code ?

III. Conviction Appeal A. Background [ 20 ] Apart from the essential facts outlined in the Overview

section of these reasons, the narrowness of the conviction appeal requires some knowledge of the following: (

a) the circumstances of the taking of Ms. McKay’s statement; (

b) the material aspects of the statement itself; and (

c) the essential parts of Ms. McKay’s testimony in examination-in-chief and cross-examination, which bear on the question of procedural reliability. I will provide this background under the following headings: circumstances surrounding the taking of Ms. McKay’s statement, the material aspects of Ms. McKay’s statement, and Ms. McKay’s trial testimony. 1. Circumstances surrounding the taking of Ms. McKay’s statement [ 21 ] Ms. McKay was arrested at around 9:30 p.m. on October 23, 2017. Constable Dunford interviewed her, beginning at 8:13 a.m. the following day. At the outset, Cst. Dunford told Ms.

McKay she was going to be charged with possession of stolen property “and she was a suspect … in, of course, weapons offences because of the shots being fired off … as well as the breach because of her pre-existing condition of not to be in contact with Lyall Anaquod”. She was informed of her rights under the Charter of Rights and Freedoms and was asked if she wanted to exercise her right to counsel. She declined to speak to a lawyer. [ 22 ] During the voir dire inquiring into the admissibility of Ms. McKay’s statement, Cst. Dunford testified about the taking of it.

She was present in the courtroom when the video was played. She testified that the video accorded with her recollection of what happened when she took the statement from Ms. McKay. The officer also testified about her first meeting with Ms. McKay: Q Describe your first meeting with Ms. McKay when you met her. A First meeting with her, I mean, was in cells, of course, when I retrieved her to go to the interview room. She was -- my initial contact with her, she was capable, lucid, nothing that indicated to me at that point that she was intoxicated by any means. So she was able to carry out a conversation.

She wasn’t overly chatty, so to speak, or making a lot of longer sentences. She was tired, initially. But through my conversations with her, my contact with her, she became more and more, I guess, able to carry on a conversation. [ 23 ] She described her approach to the interview: Q Did you formulate a strategy with respect to Ms. McKay? A I mean, with Ms. McKay, she’s -- yes, because she’s relative to my age. I feel like I could speak to her like I would speak to another 30-year-old female. So like I would speak to anybody else with my history, so to speak. Q Because I -- I watched an interview.

Would you say it’s informal, that type of conversation? A Yes. Yeah. Q Was that intentional? A Yes. Q You indicated that when you first met her, that she -- she was lucid and it appeared not under the influence of anything. Did your opinion in that regard change at any point during the course of the interview? A No. In fact, it solidified my decision that she was fine. Q And what would have solidified that at the time? A She was able to understand what I was saying and respond appropriately.

No physical, I guess, symptoms to me, in my experience, of being high or drunk or having anything that would alter her judgement at that point. Q So as a police officer with the Regina Police Service, do you have experience dealing with those under the influence of alcohol or drugs? A Yes. Several. [ 24 ] In cross-examination, Cst. Dunford testified that, aside from her eyes appearing to be somewhat inflamed and puffy, Ms. McKay “seemed fully capable of movement and normal activity”. 2. The material aspects of Ms. McKay’s statement [ 25 ] There are two parts of Ms.

McKay’s statement that are material to the resolution of this appeal: (

a) Ms. McKay’s implication of Mr. Anaquod as being the person who shot at the police; and (

b) Ms. McKay’s indication that she was not lying. [ 26 ] These were the parts of the statement that implicated Mr. Anaquod as being the person who shot at the police: MCKAY: And then he just told me to sit down and relax and shit. And I don’t know he just (inaudible) and when he heard them knocking it pissed him off and then he just (sniffles) … grabbed a gun and starting shooting out the window. DUNFORD: Yeah.

MCKAY: (inaudible) I don’t know what he was aiming at, I think he was just shooting in general so they wouldn’t come in. DUNFORD: Ok. Where did he grab the gun from? MCKAY: He brought them upstairs DUNFORD: Ok. Did they come from … the house? Or where did the guns come from? MCKAY: (inaudible) DUNFORD: What’s that? MCKAY: I have no idea, they probably brought em in. DUNFORD: Who (inaudible). MCKAY: When they brought everything else in. [ 27 ] Ms. McKay’s assertion that she was telling the truth is contained in the following exchange: DUNFORD: No (inaudible) gotcha.

Um … And this is in no way to I guess, offend you or whatever but I just want to clear up a few things. Everything that you told me so far is the truth today? You haven’t led me or lied to me today? MCKAY: No. 3. Ms. McKay’s trial testimony [ 28 ] During examination-in-chief, Ms. McKay admitted these facts: she and Mr. Anaquod were both present in the house, there were guns, they both handled the guns, there was tear gas, and Mr. Anaquod blocked the windows. She also indicated she was not a rat: Q Are you concerned that you might be branded a rat if you testify? A No. Q That doesn’t concern you? A No.

Because I’m not a rat. Q Okay. What’s your definition of a rat? A A little animal with a [expletive] tail. That’s what a [expletive] rat is. I’m not a rat. [ 29 ] Ms. McKay was cross-examined on these matters: (

a) the layout of the home where the standoff took place – she confirmed that there was a bathroom and a kitchen on the first floor, two bedrooms on the second floor, with a closet in one of the bedrooms and a window leading outside from each bedroom; (

b) whether it was dark outside when she and Mr. Anaquod were arrested – she said she remembered “a light” and a “big light”; (

c) whether she was arrested – she remembered “getting dragged to the police vehicle”, but she didn’t remember “if they said I was under arrest”; (

d) whether she was handcuffed – she said, “When I was already outside … I was handcuffed …”; (

e) whether it was her signature on the statement to Cst. Dunford – she agreed that it was; (

f) whether she had been read her right to immediate legal advice free of charge – she responded, “I guess so”; (

g) whether she had understood what Cst. Dunford had said to her – she said, “I don’t remember. I don’t know. I remember … I don’t remember. I don’t remember”; (

h) about the giving of the statement – she answered negatively when pressed whether she remembered anything in the interview; and, by way of further explanation, she said she thought “it was all a bad dream”; (

i) whether she had been drinking that night – she indicated they had been drinking “hard stuff” and agreed that the “60 of vodka” was “probably” full but that it was “empty” by the end of the night; (

j) whether they had been consuming drugs – she said, “Probably. I don’t know”, and it was “possible” that they were doing “rails”, but she also said “I don’t remember”; (

k) whether she remembered “a little bit of what happened” – she said, “Yeah”; and (

l) whether she was forced to “stay in the house” – she responded, “No”. [ 30 ] At this point in the cross-examination, Mr. Anaquod’s counsel asked Ms. McKay a series of questions about whether Mr. Anaquod had been the one who shot the gun out the window: Q And are you agreeing with me that you didn’t see him shoot the guns? A I agree that I did not see him. …

Q Okay. So is it fair to say that Lyall did not shoot the guns, to your knowledge? A Mm. I remember the one going off. … Q Yeah? Were you charged with any -- any gun offences? A I don’t think so. Q No -- no offences for stolen property? A No. Q Were you at any point ever worried that, you know, you might be charged with gun offences? A Yeah. Yeah. Q Yeah. When were you worried about that? A Well, when they read -- Q When they -- A -- when they told me that they read the rights. Like, you know, I don’t know when.

Q So when they told you about -- A Well, because there was a gun -- a gun, right? … Q You felt, then, when you were -- so when you -- you were worried about being charged with weapons offences when you were being read your rights. Was that by a female constable or a male constable? A No, I was worried when I knew that there was guns. … Q And it’s fair to say that if you were worried that day you’d be charged with weapons offences, you were probably worried when you were giving your statement to the constable that you might be charged with weapons offences? A I don’t know.

I don’t remember the statement. … Q And everything you’ve told us in court is the truth? A Yeah. Q And you watched the statement that you gave to the constable? A I watched it, yeah. Q Yeah. And is it fair to say, then, what you were saying to the constable in that statement, a lot of it was lies? Stuff -- A I don’t remember. Q You don’t remember? A I don’t remember the statement. Like, I’m just -- just that I thought it was a dream. I thought it was a bad dream. … Q Okay.

And where there’s differences between what you’ve said in court and what you said in the statement, is what you said in court the truth or on the statement the truth, where there’s differences? Let me rephrase that. So in the statement you gave to the police, we heard you talk about how, you know, you didn’t feel like Lyall was going to let you leave the house, and you talked about how you saw him shoot the firearms.

If what you’re telling us in court is the truth, those things that you said in the statement about him shooting the guns and him forcing you to stay in the house, those were lies to the -- to the officer? A Yeah. Q And you -- you lied because you were disoriented and -- and -- A Yeah. Q -- and confused? Was that a “yes”? A Yes. Yeah. Q Okay. Are you still worried that you might be charged with some of the weapons offences? A No. B. The trial judge’s voir dire and trial decisions [ 31 ] In his Voir Dire Decision , the trial judge began by quoting extensively from Bradshaw .

Applying Bradshaw to the case before him, he considered whether it was necessary to admit Ms. McKay’s statement. He observed that Mr. Anaquod’s counsel did not have instructions to agree that necessity had been met but that the issue was not contested. He noted that Ms. McKay did not appear pursuant to her subpoena when it was time to testify. A warrant had to be issued for her arrest. The trial judge concluded that necessity had been clearly established.

No appeal is taken from that holding. [ 32 ] Continuing on, the trial judge noted that procedural reliability and substantive reliability are used disjunctively by the Supreme Court in Bradshaw : “only one need to be established to allow the admission of the statement if necessity is established”. He reviewed the circumstances in which Ms. McKay’s statement had been taken. He noted that the interview with Ms. McKay began 11.5 hours after she had been arrested and after she had slept: “She had slept, but was still sleepy”. He commented that the interview room “was known to be cool”.

To overcome this, the interviewing officer, Cst. Dunford, allowed Ms. McKay to bring a blanket with her from the cells. [ 33 ] He described the taking of Ms. McKay’s statement and the extent of the cross-examination: The dangers here of this statement [is that it] was not given in court -- was not given under oath or solemn affirmation, and it was not under scrutiny of -- of contemporaneous cross-examination. As the statement was accurately recorded, the court as trier of fact, can directly observe the declarant, and hear the proposed testimony. There is no concern that the evidence was recorded inaccurately.

Here, Ms. McKay became available and was cross-examined by counsel. Here, the trier of fact can investigate the declarant’s perception, memory, narration or sincerity in the witness’ demeanour, and assess whether the testimony withstands testing -- withstands testing through cross-examination.

During her questioning in court, in addition to not remembering, she did not contradict -- I’m sorry -- during her questioning in court, inaddition to not remembering, she did contradict some of her statement when led to do so. [34] Quoting from an unreported decision of Kalmakoff J. (as he then was), who (in turn) was quoting from R v Nataucappo, 2015SKCA 28 at para 36, 322 CCC (3d) 69 [Nataucappo], the trial judge observed that “‘[t]hreshold reliability is not synonymous withtruthfulness’”. The issue is whether the evidence is “sufficiently reliable to overcome the danger(

s) arising from the inability to test it bymeans of contemporaneous cross-examination” (Nataucappo at para 35). Stating the matter another way, he asked himself whetherMs. McKay’s statement was sufficiently reliable to be considered as evidence and assessed by the trier of fact along with all of the otherevidence. [35] He then concluded his analysis on the point of threshold reliability by saying the following: Here, I am satisfied that the twin -- twin criteria of necessity and threshold reliability are met on a balance of probabilities.

The statementis sufficiently reliable to overcome the dangers -- the dangers arising from the difficulty of testing it. The hearsay dangers have beenovercome and threshold reliability is -- has been established by showing that they’re -- that there are adequate substitutes for testing truthand accuracy, procedural reliability. Accordingly, the statement will be made a full exhibit in the trial. The Court has a [residual] discretion to exclude the evidence if itsprejudicial effect outweighs -- outweighs its probative -- probative value. There is no reason shown to exercise that discretion here.

As aresult of my finding, it is not necessary to continue to a finding with respect to the substantive reliability. [36] At that point in the trial, Mr. Anaquod’s counsel advised that the relationship with her client had broken down and she wasunable to continue representing him. She sought leave to withdraw. Mr. Anaquod then requested an adjournment for the purposes ofseeking new counsel. After some delay, the trial resumed. Crown counsel indicated that he would not be calling any additional evidence.Mr.

Anaquod’s new counsel also advised the trial judge that his client was prepared to proceed with the evidence that was presentlybefore the court. [37] Following further submissions, the trial judge reserved his decision. While there were other issues that the trial judge had toconsider, the principal question was what to make of Ms. McKay’s statement.

In Bradshaw (at para 39 and on), the process to consider theuse of an out-of-court statement that has been admitted into evidence is described as determining the ultimate reliability of the utterance. [38] On the return date fixed for decision, the trial judge gave his reasons for conviction orally. On the question of ultimatereliability, he indicated that the issue for him was “whether the evidence in the statement should be believed”. He quoted from theheadnote to R v Vetrovec, (SCC), [1982] 1 SCR 811, reminding himself that Ms.

McKay could be considered anaccomplice, and he should look for evidence to support “a rational belief that [she was] telling the truth” (at 833). He asked himself whatmight impair Ms. McKay’s statement and answered the question in this way: “Clearly, it is a possibility that she may have committed theacts complained of or other criminal acts and was attempting to wrongly place the blame on Mr. Anaquod”. [39] He then reviewed the procedural details that weighed in favour of finding Ms. McKay’s statement ultimately reliable, repeatingsome of the details that he had previously mentioned in the Voir Dire Decision.

He compared her statement to her in court testimony. Hefound the two “stood in stark contrast”. In the interview, “she provided full answers” whereas when testifying “she attempted not toilluminate, but to obscure and hide”. [40] The trial judge cautioned himself about the dangers in relying on a hearsay statement to support a conviction. However, he alsoobserved that there was no evidentiary basis to support the conclusion that Ms. McKay had shot the gun that was recklessly aimed out thewindow. With that, he convicted Mr. Anaquod of all of the offences except the unlawful confinement.

On that point, he had a reasonabledoubt, as there were times during the standoff when Ms. McKay could have left the house but did not. [41] Following conviction, Mr. Anaquod brought an application to quash it on the basis of delay – in part because of the passage oftime associated with securing Ms. McKay’s attendance at trial and because of the delay in obtaining new counsel. The trial judgedismissed this application: R v Anaquod (4 December 2019) Regina (Sask PC). In doing so, he commented upon Ms. McKay’sparticipation in the trial: “Ms. McKay was a most difficult witness.

She was also an alleged victim in a charge of unlawful confinementagainst Mr. Anaquod, on which I acquitted Mr. Anaquod. It became obvious that her absence and refusal to testify in any meaningful wayhad the intended goal of frustrating the trial and aiding Mr. Anaquod to avoid conviction”. C. Mr. Anaquod’s position on the question of procedural reliability [42] Mr. Anaquod submits that the trial judge erred in principle by overemphasizing the fact that Ms. McKay was available forcross-examination as a basis to find her statement procedurally reliable. He asserts that Ms.

McKay was not available for meaningfulcross-examination because of her claim of a lack of memory. In support of this argument, he relies on R v Devine, 2008 SCC 36 atparas 26–27, [2008] 2 SCR 283 [Devine], as authority for the proposition that a full opportunity to cross-examine does not exist wheredeclarants simply say they cannot remember. He quoted and relied upon these paragraphs from that decision: [26] It is important to note that the availability of the declarant to be cross-examined will not necessarily tip the scales in favour ofadmissibility.

In order for this factor to weigh in favour of admission, there must be a “full opportunity to cross-examine the witness” attrial (K.G.B., [ (SCC), [1993] 1 SCR 740] at p. 796). As this Court explained in R. v. U.(F.J.), (SCC),[1995] 3 S.C.R. 764, at para. 46: The first factor contributing to reliability is the cross-examination of the witness. If the witness provides an explanation for changing hisor her story, the trier of fact will be able to assess both versions of the story, as well as the explanation.

However, where a witness does notrecall making an earlier statement, or refuses to answer questions, the trial judge should take into account that this may impede the jury’sability to assess the ultimate reliability of the statement. [27] For example, in R. v. Post (2007), 217 C.C.C. (3d) 225, 2007 BCCA 123, the accused pointed to the trial judge’s finding that the

K.G.B. factors were all present to support his argument that the witness’s police statement should be admitted under the principledapproach to hearsay. A unanimous Court of Appeal rejected this argument, noting that “it is clear that the most important of these three,namely the opportunity for cross-examination, existed only notionally because while Malloway was present in the courtroom, there wasno real opportunity to test her account because of her inability to recall what she saw, or to say that what she had said previously was true”(para. 65). A similar conclusion was reached in R. v.

N.(T.G.) (2007), 216 C.C.C. (3d) 329, 2007 BCCA 2. The Court of Appeal in thatcase concluded (at para. 17): In this case, any “full opportunity to cross-examine” was completely frustrated. There was no meaningful comparison between differentaccounts because Mason denied any knowledge of the facts, apart from a grudging concession that he had given a statement to the police,which he asserted was completely false. [43] Mr. Anaquod submits that Ms. McKay’s situation is similar to the above.

He says there was no real opportunity to test theaccount of her statement because of her frequent inability to recall what she saw in the residence or to say that what she had said previouslyto the police was true because she completely denied any recollection of her statement to the police. In accordance with this line ofreasoning, Mr. Anaquod asserts that the fact she contradicted herself in some respects, a factor mentioned by the trial judge, does notmean he was provided with a meaningful opportunity to cross-examine her.

It is on this narrow issue that he brings his appeal fromconviction. [44] I will now consider whether the trial judge erred by finding the cross-examination of Ms. McKay provided an adequatesubstitute for testing the reliability of her statement, having regard for Mr. Anaquod’s position that there was no meaningful cross-examination of her. Before doing so, I will briefly address the standard of review to apply to that issue. D. Standard of review [45] The parties are essentially in agreement on the standard of review.

The admissibility of evidence is a question of law; and, likeall questions of law, the issue is reviewed on the standard of correctness: R v Shepherd, 2009 SCC 35 at para 20, [2009] 2 SCR 527.However, a trial judge’s ruling on admissibility and underlying factual findings, if informed by the correct principles of law, are entitled todeference.

Thus, absent an error in principle, the determination of threshold reliability is entitled to deference: R v Couture, 2007 SCC 28at para 81, [2007] 2 SCR 517 [Couture]; R v Blackman, 2008 SCC 37 at paras 36 and 46, [2008] 2 SCR 298; and R v Youvarajah, 2013SCC 41 at para 31, [2013] 2 SCR 720 [Youvarajah]. [46] While the parties agree on the standard of review, they disagree on whether the trial judge erred in principle by admittingMs. McKay’s statement into evidence on the basis that it met the test for threshold reliability. E. Analysis 1.

Principles to apply [47] The issue in this appeal is narrow, but its resolution requires some understanding of the broader framework of the principledexception to the hearsay rule. As the trial judge recognized, this essential background is summarized in Bradshaw in the reasons ofKarakatsanis J., writing for the majority. From that decision, it is sufficient to cite these paragraphs, which discuss threshold reliability inthe context of procedural reliability: [26] To determine whether a hearsay statement is admissible, the trial judge assesses the statement’s threshold reliability.

Thresholdreliability is established when the hearsay “is sufficiently reliable to overcome the dangers arising from the difficulty of testing it”(Khelawon, [2006 SCC 57] at para. 49). These dangers arise notably due to the absence of contemporaneous cross-examination of thehearsay declarant before the trier of fact (Khelawon, at paras. 35 and 48). In assessing threshold reliability, the trial judge must identifythe specific hearsay dangers presented by the statement and consider any means of overcoming them (Khelawon, at paras. 4 and 49; R. v.Hawkins, (SCC), [1996] 3 S.C.R. 1043, at para. 75).

The dangers relate to the difficulties of assessing the declarant’sperception, memory, narration, or sincerity, and should be defined with precision to permit a realistic evaluation of whether they havebeen overcome. [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) (Khelawon, at paras. 61–63; Youvarajah, at para. 30). [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).

Thesesubstitutes must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement(Khelawon, at para. 76; Hawkins, at para. 75; Youvarajah, at para. 36). Substitutes for traditional safeguards include a video recording ofthe statement, the presence of an oath, and a warning about the consequences of lying (B.(K.G.), [ (SCC), [1993] 1 SCR740] at pp. 795–96). However, some form of cross-examination of the declarant, such as preliminary inquiry testimony (Hawkins) orcross-examination of a recanting witness at trial (B.(K.G.); R. v.

U.(F.J.), (SCC), [1995] 3 S.C.R. 764), is usually required(R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, at paras. 92 and 95). In this respect, I disagree with the Court of Appeal’s categoricalassertion that safeguards relevant to assessing procedural reliability are only “those in place when the statement is taken” ([R v Bradshaw,2015 BCCA 195] para. 30).

Some safeguards imposed at trial, such as cross-examination of a recanting witness before the trier of fact,may provide a satisfactory basis for testing the evidence. (Italic emphasis in original, underline emphasis added) [48] In this particular appeal, the Court is considering hearsay in the form of a prior inconsistent statement, i.e., a prior statement bya declarant who recants the earlier statement. As Charron J. points out in R v Khelawon, 2006 SCC 57, [2006] 2 SCR 787 [Khelawon],

there is a “heightened concern over reliability in the case of prior inconsistent statements where the trier of fact is invited to accept an out-of-court statement over the sworn testimony from the same declarant” (at para 66). [49] The above-quoted paragraphs 26 to 28 from Bradshaw apply to all forms of hearsay, but also refer to several Supreme Courtauthorities that consider the application of the principled exception to the hearsay rule to prior inconsistent statements: R v B.(K.G.), (SCC), [1993] 1 SCR 740 (WL) [KGB], and Youvarajah.

In R v Hawkins, (SCC), [1996] 3 SCR 1043[Hawkins], the prior statement took the form of a preliminary inquiry transcript and did not involve a recanting witness (such that I will notmake any other reference to it). The rest of the authorities, including Khelawon and Bradshaw, similarly do not address the specific factsituation created by a prior statement and a witness who recants it. I will now refer to KGB and Youvarajah, as well as two other SupremeCourt authorities, which involve a prior statement and a recanting witness: R v J.F.U., (SCC), [1995] 3 SCR 764 [JFU],and Devine.

I will discuss KGB, JFU, Devine and Youvarajah in chronological order. [50] In KGB, three individuals gave video-recorded interviews to the police, each saying that the accused had told them that he hadcaused the death of the victim. The statements were not made under oath, although one of the three had been advised about the criminalconsequences of lying. At trial, all three individuals recanted their prior statements and said they had lied to the police to exculpatethemselves. The trial judge refused to admit the prior statements for the truth of their contents and acquitted the accused.

The SupremeCourt disagreed and ordered a new trial. In doing so, the Court developed a new rule. Thereafter, as a result of this change in the commonlaw of evidence, a prior inconsistent statement could be admitted for the truth of its contents on a principled basis as long as the trial judge,as the gatekeeper of the evidence, determined that it was necessary and reliable. [51] Necessity, according to the majority in KGB, is to be given a “‘flexible definition’” (at para 108, quoting R v Smith, (SCC), [1992] 2 SCR 915) and does not depend upon the availability of the witness.

In the case of a recanting witness, the priorstatement is held “hostage” (at para 110). See also Khelawon at para 78 and Devine at para 16. [52] With respect to reliability, the majority in KGB held that this requirement will be satisfied “if (

i) the statement is made underoath or solemn affirmation following a warning as to the existence of sanctions and the significance of the oath or affirmation, (ii) thestatement is videotaped in its entirety, and (iii) the opposing party, whether the Crown or the defence, has a full opportunity to cross-examine the witness respecting the statement” (emphasis added, at para 106). Chief Justice Lamer for the majority also made it clear thatan oath or warning may not be required in all cases – but admissibility would depend upon whether sufficient substitutes exist in any givencase.

Indeed, the prior inconsistent statements in KGB were not made under oath. Thus, in ordering a new trial, Lamer C.J. wrote asfollows: [122] In this case, while the statements of the recanting witnesses were videotaped, and counsel for the respondent had a full opportunityto cross-examine the witnesses at trial, the statements were not made under oath, solemn affirmation or by a solemn declaration. However,it may well be that sufficient substitutes for the oath and warning as indicia of reliability exist in this case.

As this would be an issue ofcentral importance at any new trial ordered for the respondent, I will express no opinion as to whether the new test is satisfied in this casebeyond saying that it is at least possible.

A trial judge might, having heard the evidence respecting the circumstances under which thesestatements were made, be satisfied on the balance of probabilities that the statements are sufficiently reliable to be substantivelyadmissible. (Emphasis added) [53] Two years after KGB, Lamer C.J. had another opportunity to consider the admissibility of a prior inconsistent statement in JFU.In that case, the requirement missing from the KGB list was the video recording of the statement. Evidence of the statement’s existencecame from an investigating officer’s

summary, which had been prepared from notes and memory. However, the recanting witness “wascross-examined in detail about her reasons for changing her story at a preliminary inquiry, on a voir dire under s. 9 of the CanadaEvidence Act, and before the jury”, and she “provided a comprehensive explanation for changing her story which could be assessed byboth the trial judge and the jury and therefore eliminates the most important danger of hearsay evidence” (at para 53).

In JFU, it waspossible to compare the earlier statement with what was said at trial so as to permit a trier of fact to assess the truth of the priorinconsistent statement and compare it to a statement made by the accused.

In the circumstances, the prior statement could be admitted forthe truth of its contents to be assessed with all of the other evidence, notwithstanding that it had not been video recorded. [54] In Devine, the witness gave a statement to the police wherein she identified the accused after having been advised of theseriousness of making a statement and of the possible consequences of doing so falsely. A form of oath was also administered, and thestatement was video recorded.

However, when the witness took the stand she recanted her identification of the accused and testified thather statement was based on information obtained from others. As counsel for Mr.

Anaquod points out, Charron J. for the Supreme Courtaffirmed that the “availability of the declarant to be cross-examined will not necessarily tip the scales in favour of admissibility” (atpara 26); rather, a “‘full opportunity to cross-examine the witness’” is essential to proof of reliability (at para 26, quoting KGB atpara 106). [55] Applying KGB, the Supreme Court sustained the trial judge’s conclusion that the recanting witness’s prior statement could beadmitted.

A combination of factors led the Supreme Court to that result, including the administration of a form of an oath, the explanationas to the seriousness of the making of the statement, and the video recording of it. In addition, Charron J. found that there had been a“meaningful opportunity to test [the declarant’s] evidence through cross-examination” (emphasis added, Devine at para 28).

Sheconcluded that the trial judge could “assess the witness’s demeanour, and gave a detailed account of her evasiveness and reluctance toidentify”, such that the trial judge could find the witness was trying to avoid identifying the accused from the witness stand. JusticeCharron could find “no reason to disturb the trial judge’s finding in this regard”. She did not go on to consider whether the statement couldalso have been admitted on the basis of its substantive reliability. [56] In Youvarajah, the out-of-court statement took the form of an agreed statement of facts.

Like the statement in KGB, the takingor swearing of it too was not video recorded; but, unlike in KGB, it was not admitted. Cross-examination of the declarant was curtailed bythe proper application of solicitor and client privilege, which prevented answers from being given. The nature of the cross-examinationwas such that the trial judge described it as being “to a large extent illusory” (at para 41). He refused to admit the agreed statement of factsand acquitted the accused. In sustaining the trial judge’s refusal to admit the statement and the acquittal, Karakatsanis J., for the majority,

emphasized again the importance of a full opportunity to cross-examine the declarant of the hearsay statement as a means of testingthreshold reliability (at para 29) and identified other factors making its veracity difficult to assess. She wrote as follows: [70] Further, the trial judge identified the following factors that made it difficult to assess the veracity of the prior inconsistent statement.The statement was not videotaped or taken under oath. There was no opportunity to assess D.S.’s demeanour or rely upon any spontaneouschoice of words.

The police and Crown counsel chose not to videotape, under oath, as is routinely available, especially in homicide cases. [71] In light of these difficulties, only a full and complete opportunity to cross-examine would have provided a genuine basis on which toassess the reliability of D.S.’s statements.

His invocation of solicitor–client privilege, however, would preclude a full opportunity to cross-examine him. [72] The trial judge did not err in finding that the jury would not have the tools to assess or test the truthfulness of the exculpatory portionsof the [agreed statement of facts]. (Emphasis added) [57] While the above analysis reviews the relevant Supreme Court authority only, the Manitoba Court of Appeal in R v Weldekidan,2019 MBCA 109, 381 CCC (3d) 540, leave to appeal to SCC refused, [Weldekidan], has recently canvassed theprovincial appellate authority addressing what is meant by the use of the words full opportunity to cross-examine the witness, as thatphrase is used in KGB.

Justice Pfuetzner for that court divides the limited jurisprudence on point into those cases where the priorstatement was admitted and those where it was not: [46] There are cases where out-of-court statements have been held to be inadmissible, at least in part, on the basis that there was aninsufficient opportunity for cross-examination where the declarant was available at trial, but testified that he or she had no memory of theevents.

Most of these cases are factually distinguishable from the present case where the statements are compelling in their detail andclarity and there is no question that they were voluntary.

See: R v Post, 2007 BCCA 123 (witness statement was not under oath and wasthe product of “coercion, suggestion and manipulation by the interviewing police officer” (at para 3)); R v TGN, 2007 BCCA 2 (witnesswas under arrest at the time of giving the statement and had a strong motivation to incriminate others (see para 20)); R v James, 2011ONCA 839 (witness made an audio-recorded statement to police several months after the events and 12 years prior to the trial where thewitness identified the accused from a photo array); R v Johnson, 2018 SKCA 28 (KGB requirements were not met as the oath and warningwere given after the statement was taken, the witness had possible motives to lie and there was an indication of police inducement (seepara 50)); and R v Newsham, 2019 BCCA 126 (witness was the getaway driver in a robbery and had motive to minimise his involvementand to blame others). [47] On the other hand, there are provincial appellate cases where statements have been admitted, despite the declarant not beingresponsive at trial or claiming to have no memory.

See: R v PG, 2011 ONCA 50 (“A declarant’s lack of memory of the prior statement ismerely one factor to take into account when determining the reliability of the statement” (at para 5)); R v Gardipy, 2012 SKCA 58 (theinability to cross-examine a witness who refuses to testify is “just one consideration in the constellation of factors bearing on the issue ofreliability” (at para 40)); R v Woodman, 2016 ONCA 63; and R v Zaba, 2016 ONCA 167. [58] Of the two lists provided in Weldekidan, two Saskatchewan authorities are mentioned that bear upon the issue in this appeal: Rv Johnson, 2018 SKCA 28, [2018] 6 WWR 725, leave to appeal to SCC refused, [Johnson], and R v Gardipy, 2012SKCA 58, 94 CR (6th) 328 [Gardipy]. [59] In Johnson, this Court applied what was then the recently released decision in Bradshaw in the context of a witness at trial whotestified that he could not remember making a statement to the police.

The witness, Mr. Thomson, had given a video-recorded statement tothe police following an assault against him, wherein he said Mr. Johnson had been the perpetrator. [60] Applying the Bradshaw principles, the Court held that the trial judge had erred by finding Mr. Thomson’s statementprocedurally reliable because he was not available for meaningful cross-examination and the evidence raised the possibility of policeinducement.

In that regard, Ryan-Froslie J.A. wrote as follows (Johnson): [48] As Lamer C.J. pointed out in K.G.B. at 794 and 795–6, the greatest danger associated with hearsay evidence simply does not exist inthe case of prior inconsistent statements because the witness is available for cross-examination at trial. The trier of fact, be it judge or jury,can choose which, if any, version of events is to be believed. This same opportunity does not exist where a declarant refuses to testify orsimply says he or she cannot remember.

As Charron J. stated in Devine: [26] It is important to note that the availability of the declarant to be cross-examined will not necessarily tip the scales in favour ofadmissibility. In order for this factor to weigh in favour of admission, there must be a “full opportunity to cross-examine the witness” attrial (K.G.B., at p. 796). As this Court explained in R. v. U.(F.J.), (SCC), [1995] 3 S.C.R. 764, at para. 46: The first factor contributing to reliability is the cross-examination of the witness.

If the witness provides an explanation for changing hisor her story, the trier of fact will be able to assess both versions of the story, as well as the explanation. However, where a witness does notrecall making an earlier statement, or refuses to answer questions, the trial judge should take into account that this may impede the jury’sability to assess the ultimate reliability of the statement. [27] For example, in R. v.

Post (2007), 217 C.C.C. (3d) 225, 2007 BCCA 123, the accused pointed to the trial judge’s finding that theK.G.B. factors were all present to support his argument that the witness’s police statement should be admitted under the principledapproach to hearsay.

A unanimous Court of Appeal rejected this argument, noting that “it is clear that the most important of these three,namely the opportunity for cross-examination, existed only notionally because while Malloway was present in the courtroom, there wasno real opportunity to test her account because of her inability to recall what she saw, or to say that what she had said previously was true”(para. 65). A similar conclusion was reached in R. v. N.(T.G.) (2007), 216 C.C.C. (3d) 329, 2007 BCCA 2.

The Court of Appeal in thatcase concluded (at para. 17): In this case, any “full opportunity to cross-examine” was completely frustrated. There was no meaningful comparison between different

accounts because Mason denied any knowledge of the facts, apart from a grudging concession that he had given a statement to the police,which he asserted was completely false. [49] The situation described by Charron J. in Devine is the situation that exists in this case. See also R v Conway (1997), (ON CA), 121 CCC (3d) 397 (Ont CA); R v Youvarajah, 2013 SCC 41 at para 50, [2013] 2 SCR 720. [50] Second, the trial judge did not address the possible motives Mr. Thomson had to lie. It is obvious from Mr. Thomson’s statement thathe was angry with Mr. Johnson for a prior assault and theft of money.

More importantly, Mr. Thomson’s statement and his cross-examination at the voir dire raised the possibility of police inducement. [61] Since Mr. Thomson could not remember giving the statement, and there was motive to lie and the possibility of policeinducement, there was no basis upon which to find his statement was procedurally reliable. Justice Ryan-Froslie then considered whetherthe statement met the test for substantive reliability as articulated in Bradshaw.

In the circumstances of the case, she was unable to find thestatement to be substantively reliable either. [62] In Gardipy, the only witness to the crime “refused to testify at the trial” (at para 13). He had given a prior video-recordedstatement, but it was “not given under oath”, and he had not been “warned of the consequences of making a false statement” (at para 29).The trial judge admitted the statement and the accused was ultimately convicted, largely on the basis of the prior statement. On appeal,this Court sustained that conclusion.

Justice Richards, as he then was, found five factors that pointed to the reliability of the statement: (

a) the witness volunteered his evidence (at para 31); (

b) the witness was given a right to call Legal Aid counsel, which was declined, and was told he “need say nothing and that hehad nothing to hope from any promise of favour and nothing to fear from any threat” (at para 32); (

c) the witness confirmed at the end of the statement that “everything he had said was true and that he had not lied toCst. Gillman” (at para 33); (

d) the witness “admitted his role in the crimes and said nothing to minimize his own culpability other than to state that he hadnot assaulted Mr. Scott or held the knife to his throat” (at para 34); and (

e) the victim confirmed surrounding details such as being held by two assailants (at para 35). [63] On the specific question of the inability to cross-examine the witness, Richards J. wrote as follows: [40] … 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 beadmitted if there is an adequate substitute basis for testing it or if its contents are sufficiently trustworthy. See: R. v.

Khelawon, 2006 SCC57, [2006] 2 S.C.R. 787 at para. 105. (Emphasis added) [64] From her review of the authorities (including Johnson and Gardipy), Pfuetzner J.A., in Weldekidan, concluded her analysis ofwhat is meant by full opportunity to cross-examine the witness: [53] While both KGB and Devine refer to the importance of “a full opportunity to cross-examine the witness”, it is clear from bothdecisions that there are reasonable limitations on this aspect of the test for procedural reliability.

In other words, even though the nature ofthe witness’s recantation may limit the effectiveness of the opposing party’s cross-examination of the witness, this does not mean that theprior inconsistent statement cannot, or should not, be put before the trier of fact. [65] I agree generally with Pfuetzner J.A.’s reasoning and conclusion. There are reasonable limitations on the KGB requirement of afull opportunity to cross-examine.

In the case of a recanting witness and the claim of procedural reliability, the trial judge, as thegatekeeper of the evidence, must decide whether the witness has been sufficiently responsive to the questions that have been asked so as toallow the trier of fact to evaluate the prior statement.

This is the litmus test to determine whether there has been a meaningful opportunityto assess the witness’s evidence by way of cross-examination. [66] With respect to the issue of procedural reliability, my review of the Supreme Court authority discussed in these reasons revealsa broad framework for a trial judge considering whether to admit a prior statement that has become inconsistent by virtue of thedeclarant’s recantation: (

a) acknowledge that the prior statement is presumptively inadmissible as hearsay; (

b) identify the material aspect of the statement; (

c) determine the specific hearsay danger represented by the material aspect of the prior statement; and (

d) assess whether the prior statement is sufficiently reliable, having regard for the specific hearsay danger and the KGB factorsin the context of all of the circumstances. 2. Application of the principles to this appeal [67] I see no basis to disturb the trial judge’s finding that Ms. McKay’s prior inconsistent statement was sufficiently reliable to beadmitted. He acknowledged that the statement was presumptively inadmissible. Given the trial judge’s extensive quotation of thecontrolling jurisprudence, he had properly informed himself of the law.

His reasons could have been more developed; but, when hisanalysis is viewed against the backdrop of the evidence, the submissions, and what is the established and well-known law, his conclusion

on procedural reliability is sustainable. I will expand on this with reference to the nature of the cross-examination and the procedural aspects of the taking of the statement. [ 68 ] In Bradshaw , Karakatsanis J. stressed that “in assessing threshold reliability, the trial judge must identify the specific hearsay dangers presented by the statement and consider any means of overcoming them” (at para 26, citing Khelawon at paras 4 and 49 and Hawkins at para 75 ).

In the words of Charron J. in Khelawon , and quoted in Bradshaw at paragraph 47 , “the scope of the inquiry must be tailored to the particular dangers presented by the evidence and limited to determining the evidentiary question of admissibility” (at para 4). [ 69 ] In this case, the danger was that Ms. McKay had lied when she gave her statement to the police in order to protect herself. In other words, it was she who had fired the gun at the police. In accordance with Bradshaw , it would have been preferable if the trial judge had identified this as the specific hearsay danger.

However, I see no error in principle by virtue of his failure to do so because I am satisfied that he was alive to the issue. It would be difficult not to have understood this to be the hearsay danger when this was a locked- room crime, i.e., where only one of two people present could have committed the offence. It was the obvious hearsay danger and the trial judge received specific submissions on this point. I note that counsel on appeal does not criticize this aspect of his reasons. [ 70 ] With this as the hearsay danger in mind, some preliminary comments serve to further frame what is at issue in this appeal.

Ms. McKay did not refuse to testify at trial, as such, nor did her testimony bear out her claim that she had no memory of the event or, indeed, the making of the statement. She testified about the standoff and the statement, although with limited answers. It is apparent from the transcript that Ms. McKay’s trial testimony went beyond a denial of the video-recorded statement and an assertion of a lack of memory, as had occurred in Johnson . For example, at various points during the trial proper and the voir dire she admitted their presence in the home and the existence of the guns.

She also indicated she was not a rat. Further, in due course, after saying she had not made the statement, she did in fact acknowledge having done so.

Indeed, the way she recanted what she had said in the video-recorded statement is itself an acknowledgement that she had given a statement to the police, i.e., she agreed with defence counsel that she had lied during the making of the statement. [ 71 ] Granted, it cannot be said that she “provided a comprehensive explanation for changing her story which could be assessed by both the trial judge and the jury and therefore eliminat[ing] the most important danger of hearsay evidence” ( JFU at para 53), like the witness in JFU .

However, the detail of her evidence is qualitatively and quantitatively different from a witness who refuses to testify or, when testifying, says only that she does not remember either the events or the making of the statement at all. To paraphrase and reiterate the words of Karakatsanis J. in Bradshaw , the examination and cross-examination of Ms. McKay provided “a satisfactory basis to rationally evaluate the statement” (emphasis in original, at para 40).

Her cross-examination provided “a satisfactory basis for testing the evidence” (at para 28). [ 72 ] It also must be noted that, unlike in JFU or indeed in Youvarajah , Ms. McKay’s statement was video recorded. In that regard, the situation here is more like KGB , where the statement was not made under oath but in circumstances where the seriousness of the questioning was brought home to the declarants and it was video recorded. Given that the statement was recorded, the trial judge was able to compare the demeanour of Ms.

McKay in the video recording and when she was on the stand, which he proceeded to do in the Voir Dire Decision . [ 73 ] The trial judge described Ms. McKay’s demeanor while giving her statement: The statement generally proceeded as a friendly, calm, comfortable conversation. There was nothing oppressive in the Constable’s manner. Ms. McKay’s water was replenished as she requested. Although tired, having consumed drugs and alcohol during a standoff and being exposed to large amounts of tear gas, Ms. McKay was lucid and sufficiently alert. Generally her answers -- answers flowed easily.

She was given the chance to add anything that she wished to say. Ms. McKay, when questioned, acknowledged that she was telling the truth. She was alive to the serious nature of the events they discussed. [ 74 ] However, when speaking about Ms. McKay’s demeanor on the stand, the trial judge described her manner of testifying as follows: “Ms. McKay yawning frequently, presented herself as uninterested with one exception, she was deliberately not engaged.

The one exception was when she said she was not a rat” (emphasis added). [ 75 ] The trial judge expanded on the comparison between her out-of-court statement and her in-court testimony in the Conviction Decision and also offered a reason as to why he believed Ms. McKay’s two versions differed one from the other: The evidence she provided in her court testimony stood in stark contrast to that which she gave in this interview. In court, she attempted not to illuminate, but to obscure and hide. In the interview she provided full answers. She would expand on Dunford’s comments. Ms.

McKay answered the questions and provided the detail with ease. Her refusal to attend court, her attitude while testifying, together with her only becoming engaged in court when she emphatically said that she was not a rat, combined with her remarks in her statement about her concern for Mr. Anaquod, all demonstrated a protective stance, vis-à-vis Mr. Anaquod. The detail in her statement is plentiful. It is unlikely one concocting a story would give the degree of detail she gave or go down the path she did. She was sympathetic towards Mr.

Anaquod. [ 76 ] Again, it would have been preferable if the trial judge had mentioned this aspect of his reasoning in the Voir Dire Decision and repeated it if necessary in the Conviction Decision , but his not doing so can hardly be the basis upon which a new trial would be ordered. It is plain from the evidence and the submissions that Ms. McKay had a relationship with Mr. Anaquod and was protecting him. She was not going to be a rat. [ 77 ] Indeed, Ms. McKay went to some lengths to demonstrate that she was not reliable and sometimes tripped herself up when doing so.

For example, when she was asked when she became concerned that she might be charged, she inadvertently mentioned that she became concerned when she was given her Charter rights to counsel (and I repeat):

Q Yeah? Were you charged with any -- any gun offences? A I don’t think so. Q No -- no offences for stolen property? A No. Q Were you at any point ever worried that, you know, you might be charged with gun offences ? A Yeah. Yeah. Q Yeah. When were you worried about that ? A Well, when they read -- Q When they -- A -- when they told me that they read the rights . Like, you know, I don’t know when.

Q So when they told you about -- A Well, because there was a gun -- a gun, right? (Emphasis added) [ 78 ] In addition to being video recorded, and the nature of the cross-examination, the taking of the prior statement in this case provided other indicia of procedural reliability. As I indicated earlier, Cst. Dunford gave Ms. McKay the usual warnings, impressing upon her the seriousness of the matter. She was also informed of her rights under the Charter and was asked if she wanted to speak to a lawyer. [ 79 ] On the specific hearsay danger of Ms.

McKay lying in her prior statement so as to protect herself, it must be noted that parts of her statement in fact implicated her. She too was part of the standoff and might have been named as a party to all of the offences with respect to which Mr. Anaquod was charged – including the weapons offences. As it turned out, the police charged Mr. Anaquod with having confined her, and she did not face the same charges that he did; but, when she gave her statement, she did not know what the police would do with it.

This is precisely one of the factors that led this Court in Gardipy to sustain the trial judge’s admission of the prior inconsistent statement in that case: “i.e., it is unlikely that a person would lie to implicate himself or herself in a crime” (at para 34). This factor, which might more usually be considered when assessing substantive reliability, is also relevant in assessing procedural reliability. [ 80 ] Thus, in light of the circumstances of this case, I conclude the trial judge did not err by finding that Ms.

McKay’s statement was sufficiently reliable on the basis of procedural reliability and admitting it into evidence. Since this was the only ground of appeal in relation to conviction, the appeal from conviction is dismissed. [ 81 ] There is one final matter. I have approached this appeal in the same way as the trial judge by considering whether Ms. McKay’s statement was sufficiently reliable on the basis of procedural reliability only.

Like the trial judge, I have not determined whether the statement might also have been admitted on the basis of substantive reliability or on the basis of some combination of procedural and substantial reliability. My decision to limit my analysis should not be taken as indicating that it would have been an error for the trial judge to have gone on to consider those issues. Rather, like in Devine , it is simply not necessary to proceed beyond an assessment of the trial judge’s reasons and his conclusion regarding procedural reliability.

This Court’s decision in R v Allary , 2021 SKCA 110 , which is being released concurrently with this decision, is an example of where the admissibility of a prior inconsistent statement turned on substantive reliability only. IV. Sentence Appeal A. Standard of review [ 82 ] An appellate court can only intervene to vary a sentence if (

a) the sentence is demonstrably unfit or (

b) the sentencing judge made an error in principle that had an impact on the sentence. Errors in principle include an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor. The weighing or balancing of factors can form an error in principle if, by emphasizing one factor or by not giving enough weight to another, the trial judge exercises his or her discretion unreasonably. Not every error in principle is material: an appellate court can only intervene if it is apparent from the trial judge’s reasons that the error had an impact on the sentence.

If an error in principle had no impact on the sentence, that is the end of the error in principle analysis and appellate intervention will be justified only if the sentence is demonstrably unfit: R v Friesen , 2020 SCC 9 at para 26 , 444 DLR (4th) 1. If a sentence is demonstrably unfit, or if a sentencing judge made an error in principle that had an impact on the sentence, an appellate court must perform its own sentencing analysis to determine a fit sentence: R v Lacasse , 2015 SCC 64 at para 43 , [2015] 3 SCR 1089. B. Analysis [ 83 ] Mr.

Anaquod’s argument is centred on the trial judge’s comparison of his offences with those in Arcand and Whitehead . In each of those decisions, the accused was charged with discharging a firearm with intent ( s. 244(1) ) and received sentences of eight and ten years respectively. Mr. Anaquod, it must be remembered, also received a sentence of eight years – but for discharging a firearm while being reckless (s. 244.2). Mr. Anaquod submits that comparing the two offences and arriving at the same sentence constitutes an error in principle that had an impact on the sentence.

He makes no other arguments about the sentence. In my view, however, there is no merit to this argument. [ 84 ] Granted, the two offences of discharging a firearm with intent ( s. 244(1) ) and discharging a firearm while being reckless (s. 244.2) describe a different mental element. A side by side comparison reveals this difference: Discharging firearm with intent Discharging firearm – recklessness

(1) Every person commits an offence who discharges a firearm at a person with intent to wound, maim or disfigure, to endanger the life of or to prevent the arrest or detention of any person—whether or not that person is the one at whom the firearm is discharged. 244.2(1) Every person commits an offence … (

b) who intentionally discharges a firearm while being reckless as to the life or safety of another person. Punishment Punishment

(2) Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable

(3) Every person who commits an offence under subsection (1) is guilty of an indictable offence and (

a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of (

a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if the offence is committed for the benefit of, at the direction of or in association with a criminal organization, is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of (

i) in the case of a first offence, five years, and (

i) five years, in the case of a first offence, and (ii) in the case of a second or subsequent offence, seven years; and (ii) seven years, in the case of a second or subsequent offence; and (

b) in any other case, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of four years . (

b) in any other case, is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of four years . Décharger une arme à feu avec une intention particulière Décharger une arme à feu avec insouciance 244(1) Commet une infraction quiconque, dans l’intention de blesser, mutiler ou défigurer une personne, de mettre sa vie en danger ou d’empêcher son arrestation ou sa détention, décharge une arme à feu contre qui que ce soit. 244.2(1) Commet une infraction quiconque : …

b) soit décharge intentionnellement une arme à feu sans se soucier de la vie ou la sécurité d’autrui. Peine Peine

(2) Quiconque commet l’infraction prévue au paragraphe (1) est coupable d’un acte criminel passible :

(3) Quiconque commet l’infraction prévue au paragraphe (1) est coupable d’un acte criminel passible :

a) s’il y a usage d’une arme à feu à autorisation restreinte ou d’une arme à feu prohibée lors de la perpétration de l’infraction, ou si celle- ci est perpétrée au profit ou sous la direction d’une organisation criminelle ou en association avec elle, d’un emprisonnement maximal de quatorze ans, la peine minimale étant :

a) s’il y a usage d’une arme à feu à autorisation restreinte ou d’une arme à feu prohibée lors de la perpétration de l’infraction, ou si celle- ci est perpétrée au profit ou sous la direction d’une organisation criminelle ou en association avec elle, d’un emprisonnement maximal de quatorze ans, la peine minimale étant : (

i) de cinq ans, dans le cas d’une première infraction, (ii) de sept ans, en cas de récidive; (

i) de cinq ans, dans le cas d’une première infraction, (ii) de sept ans, en cas de récidive;

b) dans tous les autres cas, d’un emprisonnement maximal de quatorze ans, la peine minimale étant de quatre ans.

b) dans tous les autres cas, d’un emprisonnement maximal de quatorze ans, la peine minimale étant de quatre ans. (Emphasis added) [ 85 ] It may be true to say that the law perceives intentional acts to be more grievous than reckless ones, but that does not necessarily result in more lenient sentences in any given case for an offence based on recklessness. Indeed, as will be seen from the above, each of the s. 244(1) and the s. 244.2(1) (

b) offences is subject to the same minimum and maximum sentences. In this case, a number of factors went into setting the gravity side of the proportionality assessment. [ 86 ] By virtue of the submissions made, the issue lying behind this ground of appeal is narrow.

It requires the Court to consider only the gravity side of the proportionality equation established by s. 718.1 of the Criminal Code : Fundamental principle 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 87 ] In this case, the gravity of the offence was not fixed by an artificial assessment of what had transpired in other cases. It was fixed by the dangerousness of the instant offence and the context in which it took place.

I can do no better than to quote the words of the trial judge describing the extremity of the danger: What followed was a dangerous, tense, ten-hour standoff, which saw the deployment for a very large number of peace officers, SWAT teams, a tactical armed vehicle, snipers, negotiators, and over 70 canisters of tear gas over a six-hour period. Attempted negotiations failed to resolve the standoff. … The accused had consumed alcohol, cocaine, and morphine. He had not slept for days. He said he wanted to kill police officer[s], and there is every reason to believe he would have, if he were able to.

He was erratic and dangerously unpredictable. The life of Ms. McKay may well have been in danger as well. Shots were fired from the house. An officer felt the force of a shot that passed close to him. A police sniper shot at Mr. Anaquod when he saw him point his rifle towards another officer. …

Negotiators were deployed to no effect. He could have made arrangements through the phone that was sent in. He did not surrender to any realization of what he had done. He surrendered after a ten-hour standoff, over six hours of tear gas bombardment, as well as being shot at. He was surrounded by police.

On exiting, his refusal to move a -- to a place where officers could be certain that if there were anyone else in the residence they would be safe, and his fighting with the [police] dog speak more eloquently to his intentions. [ 88 ] The trial judge expanded on the aggravating factors that set the gravity of the offence: There are a number of aggravating factors present in this case. Firearms were discharged with a bullet narrowly missing a peace officer. The dangerous situation was prolonged. Mr. Anaquod had opportunities to end the confrontation; he remained resolute in his defiance.

The offences took place in a residential neighbourhood, endangering ordinary citizens, as well as peace officers. There was a -- it was a great potential of harm to Ms. McKay. Mr. Anaquod was affected by drugs and alcohol, making him dangerously erratic and unpredictable. The use of firearms has increased substantially and dangerously in the City of Regina in recent years. The involvement of a firearm in a crime has moved from being rare to being fairly common.

The police office ( sic ) would have been negatively affected, especially the three who attended the door, and the peace officer who felt the force of the bullet pass by. Mr. Anaquod’s unprovoked conduct was directly -- was directed primarily at police officers, who were carrying out their sworn and lawful duty to enforce the laws and protect the public. [ 89 ] The trial judge was obviously aware of the potential danger to the police officers carrying out their duties during the standoff: The judgment is, of course, based on Mr. Anaquod’s crimes and personal circumstances.

Additionally, it is meant to address a message to others who may consider in engaging in similar conduct, using firearms against policemen -- against police officers. The police -- the police cannot choose when and where and whom they interact with. Every time they engage with anyone, they’re involved in a potentially dangerous situation, no matter how benign it may appear. It is impossible to predict. They are tasked with protecting members of the public.

Those who engage in criminal conduct against the police using firearms must be made aware that their sentences will be severe. [ 90 ] Given the circumstances as outlined by the trial judge, it is difficult to say that the scenario is less grave than those in Whitehead and Arcand . In Whitehead , in addition to an assault on his wife, the accused discharged a 12-gauge shotgun at the police, narrowly missing an officer and hitting the police car behind that officer. In Arcand , the accused came to the attention of the police because he was attempting to break into his own car.

He had an improvised firearm in his possession that held a 12-gauge shotgun shell. Following a brief, tense standoff, he fired one shot at the police, striking a traffic post near an officer, and then ran away, later firing a second shot. [ 91 ] Further, while the ground of appeal asks this Court to look exclusively at the gravity of the offence, it is clear from the reasons that the trial judge also found Mr. Anaquod’s moral culpability to be high, stemming in large part from his criminal record, which is significant.

In the words of the trial judge, His record is extensive. 1999, as a youth, a break and enter, he received probation for one year on that and another break and enter charge. 1993, convicted of assault with a weapon, four months open custody and one year probation. 1994, break and enter with intent, six months. 1995, theft under $5,000, suspended sentence and probation for six months. 2000, obstruction, for which he received 12 months -- I’m sorry, two months; failure to appear and failure to comply with recognizance, one month on each, consecutive the one to the other; driving while ability impaired, one month concurrent, and a driving prohibition for one year; a flight where he received six months consecutive, prohibition for 18 months; also possession of a

Schedule II substance under the CDS Act where he received $150 fine. In 2003, mischief under $5,000 and failure to comply with a recognizance, suspended sentence and probation for six months. 2003, a break and enter with intent, six-month conditional sentence; obstruction, two months conditional sentence consecutive; fail to comply with probation order, three months conditional sentence concurrent.

Later on in 2003, assault with a weapon, six months conditional sentence; failure to comply with recognizance, failure to comply with probation order, suspended sentence and probation for six months on each charge, consecutive. 2004, he’s convicted of a breach and -- a breach of probation, the penalty is not indicated. 2007, assault with a weapon, a further assault with a weapon, and a common assault. He received one year, and 10 months on the assault with a weapons ( sic ), and six months c

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