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R. v. A.S.G., 2018 BCPC 283 (CanLII)

Date:
2018-10-22
File number:
87106-2KC
Citation:
R. v. A.S.G., 2018 BCPC 283 (CanLII), <https://canlii.ca/t/hw0cb>, retrieved on 2024-03-29

Citation:

R. v. A.S.G.

 

2018 BCPC 283

Date:

20181022

File No:

87106-2KC

Registry:

Abbotsford

 

 

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

 

 

 

 

 

 

REGINA

 

 

v.

 

 

A.S.G.

 

 

 

 

 

RULING ON VOIR DIRE

OF THE

HONOURABLE JUDGE K. D. SKILNICK

 

 

 

 

 

Counsel for the Crown:

R. Macgowan

Counsel for the Defendant:

P. Singh

Place of Hearing:

Abbotsford, B.C.

Date of Hearing:

October 22, 2018

Date of Judgment:

October 22, 2018

 


[1]           The Crown brings an application to have two pieces of hearsay evidence, presented in the course of the trial of this matter, admitted for the truth of their contents.  These would otherwise be inadmissible for such purpose, but the Crown seeks to have them admitted for the truth of their contents, under the principled exception to the hearsay rule.  These are both statements made by the Complainant in this case.  One is in the form of messages transmitted on her smart-phone using the Facebook app and sent to her landlady.  The second is an audio-recorded statement that she gave to a police officer.  The statement was not taken under oath.  The Crown takes the position that each of these can be admitted into evidence for the truth of their contents, under the principled exception to the hearsay rule.  The Crown’s application is opposed by counsel for the Accused.

[2]           As a general rule, these statements are inadmissible in evidence as proof of the truth of their contents.  No one has sworn or affirmed as to their correctness, and the maker of the statement has not been subjected to any form of cross-examination to test their reliability.

[3]           The law of evidence makes an exception for the admissibility of such evidence for the proposed purpose if certain safeguards are met.  The law on this point is set out in two leading decisions of the Supreme Court of Canada which Crown has cited: R. v. Khelawon 2006 SCC 57 (CanLII), [2006] 2 S.C.R. 787, and more recently R. v. Bradshaw 2017 SCC 35 (CanLII), [2017] 1 S.C.R. 865.  These cases stand for the proposition that hearsay evidence is presumed to be inadmissible unless it falls under an exception to the hearsay rule.  The cases hold that, prior to admitting hearsay statements under the principled exception to the hearsay rule, the trial judge must determine on a voir dire that necessity and reliability have been established in order to admit the evidence under the principled exception.  The onus is on the person who seeks to adduce the evidence, in this case the Crown, to establish these criteria on a balance of probabilities.

[4]           In this case, the Accused is charged with assaulting the Complainant causing her bodily harm and uttering a threat to her.  The Complainant has testified at trial, reluctantly, and only after having been arrested on a material witness warrant after she failed to attend court in response to a subpoena.  In an audio-recorded statement which she gave to Constable Baskin, she described being the victim of an assault which she said was committed by the Accused.  She told Constable Baskin that injuries she had, which were observed and photographed by Constable Baskin, were received as the result of that assault.  Her landlady testified about receiving Facebook messages from the Complainant in which the Complainant alleges that she was being assaulted by the Accused and asked for help.

[5]           In her testimony at trial, the Complainant now says that she is unable to remember the things that she told Constable Baskin in her recorded statement, and does not remember the things mentioned in the Facebook messages that were sent to her landlady.  She agrees that these messages were sent from her Facebook account and on her phone, but she says that she has no recollection of sending these messages.  She also agrees that she was interviewed by Constable Baskin and that it is her voice on an audio recording of that interview, but says that she has no memory of that interview or of the answers she gave to Constable Baskin.

[6]           For unsworn statements such as these to be admitted into evidence for the truth of their contents as principled exceptions to the hearsay rule, they must satisfy the legal requirements of necessity and reliability.  The two previously mentioned cases cited by Crown, as well as the Saskatchewan Court of Appeal decision in R. v. Burns [2016] S.R. 266 (at paragraphs 16 to 18), all stand for the proposition that in a case such as this, the requirement of necessity is met when a witness resiles from, recants, or testifies inconsistently with a previous statement.

[7]           The requirement of reliability is somewhat more nuanced at this stage of the proceedings.  At a voir dire such as this, the Supreme Court of Canada has held that the trial judge is only called upon to determine “threshold reliability”.  This is distinguished from “ultimate reliability”, which the judge is required to decide only when the hearsay has been admitted and all of the evidence in the case has been heard.

[8]           The Supreme Court of Canada has held, in the two decisions previously cited, that threshold reliability is established if both procedural reliability and substantive reliability are present.

[9]           Procedural reliability is meant to compensate for the fact that the evidence was not subjected to the same scrutiny it might otherwise endure if it was subjected to cross-examination and other proper testing of its accuracy.  There are ways of compensating for that, such as the taking of a KGB statement (a video-recorded statement taken under oath, with a warning about the consequences of lying, something which was not done in this case), or by having the maker of the statement presented for cross-examination, (something which was achieved in this case).

[10]        Substantive reliability invites a consideration of the circumstances surrounding the making of the statement to assess its reliability.  In Bradshaw, the court listed the different ways in which substantive reliability can be established.  This includes:

(a)         Where the statement is “so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process”;

(b)         When the statement “is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken”;

(c)         Where the circumstances are such that “even a skeptical caution would look upon it as trustworthy”;

(d)         When the statement is so reliable that it is “unlikely to change under cross-examination”;

(e)         When “there is no real concern about whether the statement is true or not because of the circumstances in which it came about”; or

(f)            When the only likely explanation is that the statement is true.

[11]        The Crown has cited a number of reasons why it says the audio-recorded statement and the Facebook messages meets this test.  On behalf of the Accused, Mr. Singh argues that this test is not met because it is contradicted by the Claimant’s in-court testimony that the offences alleged never took place and her agreement with his proposition that it is possible that she made these statements, but did so “in a fit of rage.”

[12]        The material aspects of each of the hearsay statements that are tendered for their truth concern the specific nature of the alleged offences.  The specific hearsay dangers raised by those statements are in regard to their conflict with the testimony of the complainant that no assault or threat ever took place.  I take into account that this testimony is at odds not only with the statements sought to be admitted, but also with a number of pieces of corroborative evidence that I will refer to.  It is also at odds with the fact that, on the one hand, the Complainant says that no assault occurred, but on the other hand she says that she doesn’t remember what happened.  I have considered these circumstances and any the alternative, even speculative, explanations for why the Complainant may have made the statements proposed to be admitted into evidence as suggested by counsel.

[13]        In my view, given the circumstances of the case, the corroborative evidence in this case rules out these alternative explanations, such that the only remaining likely explanation for the statement is the accuracy of the material aspects of the statement.

[14]        In considering whether the threshold reliability has been met, I take into account the following considerations:

(a)         The number, content and timing of the Facebook messages is corroborated by the testimony of the landlady.

(b)         The Facebook messages have been preserved.

(c)         The messages match what the Complainant reported in her audio- recorded statement to Constable Baskin.

(d)         Both the Facebook statements and the audio-recorded statement are consistent with what was reported to the 9-1-1 operator.

(e)         The audio-recorded statement was taken within hours of the events complained of.

(f)            The audio-recorded statement was made when the Complainant was in a sober condition.

(g)         The answers given in the statement are not the product of leading questions or any coercive or aggressive questioning.

(h)         The injuries observed on the Complainant by the landlady, the paramedic and by Constable Baskin match the type of assault described by the Complainant in her audio-recorded statement.

(i)            Damage found to the exterior window screen is corroborative of what the Complainant described in her statement.

[15]        In her statement, the Complainant requested the assistance of a Punjabi speaking interpreter, as English is not her first language.  One was unavailable and Constable Baskin decided that the exigencies of the situation called for him to proceed to take a statement from the Complainant without the presence of an interpreter.  While this is not an ideal situation, on a reading of the statement, the answers given by the Complainant were responsive to the questions she was asked and nothing in the statement suggests that the absence of proper translation distorted the answers given.  While in some cases this may be a factor in making a statement such as this unreliable, I have no reason to found such a belief in this case.

[16]        I am satisfied that the requirements of necessity and threshold reliability have been established and that the two hearsay statements sought to be admitted for the truth of their contents should be admitted into evidence and I rule accordingly.

[17]        In doing so, I make two further comments.  Firstly, a portion of the statement given to Constable Baskin concerns matters that are not the subject of this charge.  They may be such that their prejudicial effect would outweigh their probative value.  Accordingly my ruling does not apply to that portion of the audio recorded statement beginning at page 11, line 3.

[18]        Secondly, my ruling concerns only the admissibility of the evidence sought to be found subject to the principled exception to the hearsay rule.  It is not determinative of the ultimate issues in this case, and obviously does not relieve the burden that rests with the Crown to prove all of the elements of this offence beyond a reasonable doubt.  I make this comment because some of the submissions of Counsel for the Accused appeared to misapprehend the burden on the Crown in an application of this nature, which is on a balance of probabilities.  (See R. v. Khelawon, supra, at para. 47).

Dated at the City of Abbotsford, in the Province of British Columbia, this 22nd day of October, 2018.

 

 

_____________________________________

(The Honourable Judge K. D. Skilnick)