



COURT OF APPEAL FOR
BRITISH COLUMBIA




Citation:


R. v. TGN,







2007 BCCA 2



Date: 20070102



Dockets: CA034011, 
    CA034023, CA034025

Between:

Regina

Respondent

And

Docket: CA034011

T.G.N.

Docket: CA034023

D.T.A.

Docket: CA034025

M.G.Q.

Appellants



(
Youth Criminal 
    Justice Act
)




Before:


The Honourable Mr. Justice Donald




The Honourable Mr. Justice Mackenzie




The Honourable Mr. Justice Low








A. S. Roth


Counsel for the Appellant

TGN




S. J.
Narbonne


Counsel for the Appellant

DTA




S. M. Merrick


Counsel for the Appellant

MGQ








M.
Brundrett


Counsel for the Respondent




Place and Date of Hearing:


Vancouver, British 
          Columbia





1 December 2006





Place and Date of Judgment:


Vancouver, British 
          Columbia





2 January 2007








Written Reasons by
:




The Honourable Mr. Justice Mackenzie




Concurred in by:




The Honourable Mr. Justice Donald

The Honourable Mr. Justice Low





Reasons for Judgment of the Honourable 
    Mr. Justice Mackenzie:

[1]

This 
    appeal is from conviction for attempted robbery on the ground that the trial 
    judge erred in admitting under the principled exception to the hearsay rule 
    a prior statement of the witness, Troy Mason, implicating the three appellants 
    in the offence.  The Crown accepts that the convictions must be set aside 
    if the trial judge erred in admitting the statement for the truth of its contents.

[2]

The 
    Crown alleged that the three young appellants with a fourth individual attempted 
    to rob an elderly man, Armand
Leblond
, at his residence 
    in Terrace B.C. on 5 March 2004.  The fourth individual was acquitted 
    on a no evidence motion at trial.  The three appellants were convicted 
    of attempted robbery and acquitted on the break and enter charge.  Mr. 
    Mason was not charged.

[3]

Mr.
Leblond
testified that two young men entered his residence 
    when he answered a knock on his door.  One said:  This is a hold-up.  
    Mr.
Leblond
backed up to the kitchen table, picked 
    up a chair and swung it at the head of the first person to enter the premises.  
    That person went backwards against the other one and they both ran out.  
    Mr.
Leblond
shut and locked the door with the assistance 
    of another occupant, Mr.
Doell
.  Mr.
Doell
looked out a window and saw four individuals leaving the house and going down 
    the driveway.  He saw a fifth person waiting on the street at the end 
    of the driveway.

[4]

The 
    police were called.  They set up a perimeter and followed tracks in recent 
    snow from the edge of the perimeter to a residence on Pine Street.  The 
    house was put under surveillance.  The snow was too disturbed to trace 
    any tracks from the perimeter to the
Leblond
residence.  
    Eventually the police entered the house on Pine Street and arrested five individuals 
    including the three appellants and Mason.  They were taken to the Terrace 
    RCMP Detachment shortly before midnight.  Mason was separated from the 
    others.

[5]

At 
    about 7 am Mason was taken by Const. Craig to an interview room where he gave 
    a videotaped statement.  In it he stated: that he went to Mr.
Leblonds
residence with the three appellants and a fifth 
    individual; that the others intended to rob Mr.
Leblond
who one of the group believed to be a bootlegger; that he held back and D.T.A. 
    and M.G.Q. were the two who entered the residence; and that afterward, they 
    told him that D.T.A. had been hit over the head by the old guy.

[6]

Neither 
    Mr.
Leblond
nor Mr.
Doell
was able to identify any of the individuals involved.  A neighbour who 
    also saw five individuals in the vicinity also could not identify them.
The Crowns case hinged on Masons evidence of identification.

[7]

At 
    trial, when Mason was called by the Crown he recanted the statement.  
    The Crown was given leave to cross-examine but without effect. Crown counsel 
    then applied to have the statement admitted as substantive evidence, relying 
    on the principled exception to the hearsay rule for prior inconsistent statements 
    of a witness as explained in
R. v. B. (K.G.)
, [1993] 1 S.C.R. 
    740.

[8]

The 
    trial judge conducted a
voir
dire
to determine admissibility.  Mason testified that he was drunk and had 
    no recollection of the events of the evening.  He recalled making a statement 
    to the police but he said that everything in it was false.  He said he 
    gave the statement because he was afraid that the police would keep him in 
    custody if he did not tell them what they wanted to hear.  The trial 
    judge described Mason as one of the most unsatisfactory witnesses [he] had 
    the unfortunate duty to have in [his] court and he was satisfied that, almost 
    without exception, everything [Mason] said in [his] courtroom was a lie. 
    However, he concluded that Masons statement met the
B. (K.G.)
requirements of necessity and reliability and admitted it for the truth of 
    its contents.

[9]

The 
    three appellants testified and denied any attempt to rob Mr.
Leblond
.  The trial judge found their evidence was not 
    credible and convicted them of attempted robbery.

[10]

The 
    admissibility of Masons statement is the sole issue on this appeal.  
    Necessity is conceded and the issue turns on reliability.  The trial 
    judge accepted that the test was whether, on the balance of probabilities, 
    the statement had sufficient indicia of reliability to be admissible as if 
    it had been given by Mason in evidence under oath.

[11]

The 
    statement was taken by Const. Craig several hours after Mason had been arrested.  
    The trial judge accepted that the police were not able to interview Mason 
    earlier because they were otherwise engaged on a busy night.  Constable 
    Craig had established a rapport with Mason as a result of earlier contacts 
    and the trial judge was satisfied that Masons statement was voluntary and 
    not made as a result of threats or inducements.  All five individuals 
    had been held separately from the time of their arrest until they were released 
    and Mason had no contact with any of them between the time of arrest and his 
    statement.  The statement was videotaped.  The statement was accepted 
    to have been made voluntarily, in the sense that it was not obtained as a 
    result of threats or inducements.

[12]

In 
    his ruling that the statement was admissible the trial judge emphasized its 
    reference to one of the appellants being hit over the head with a chair by 
    the old guy.  He concluded that the statement had the necessary reliability 
    because the chair incident was sufficiently distinct that Mason could not 
    have made it up; a participant in the attempted robbery must have told Mason 
    about it.  The appellants contend that it was a reversible error for 
    the trial judge to use the extrinsic evidence of the chair incident on the
voir
dire
to confirm the statements reliability 
    for the purpose of determining its admissibility.  In this Court, they 
    relied on
R. v. Starr
, [2000] 2 S.C.R. 144.  After the 
    hearing of the appeal, the Supreme Court of Canada delivered reasons in
R. 
    v.
Khelawon
, 2006 SCC 57 directing (at
para
. 
    93) that
Starr
should no longer be followed as limiting the 
    consideration of relevant extrinsic evidence on the question of admissibility.
Khelawon
is conclusive against 
    the appellants on the issue of any error in principle on the trial judges 
    consideration of the
Leblond
and
Doell
evidence concerning the chair incident in determining 
    threshold admissibility on the
voir
dire
.  
    There remains an issue as to whether the trial judge misapprehended its significance 
    on the issue of threshold reliability.

[13]

Khelawon
reaffirmed the general principle 
    that hearsay evidence is presumptively inadmissible because of the difficulty 
    of testing the reliability of the
declarants
assertion.  
    It is only admissible under the principled exception to the hearsay rule if 
    it can satisfy the twin tests of necessity and reliability.  Under our 
    adversary system cross-examination is the primary means of testing reliability 
    but it is not an absolute requirement if the ultimate objective of a fair 
    trial can be met by other means.  The right to make a full answer and 
    defence must be balanced with the interest of society in finding the truth.  
    Threshold reliability turns on whether there are adequate substitutes for 
    the traditional evidentiary safeguards

[14]

The 
    question that confronts us is whether the trial judge erred in concluding 
    that the statement had sufficient circumstantial reliability to overcome the 
    presumption against hearsay admissibility, keeping in mind that the issue 
    of threshold reliability is distinct from the question of ultimate reliability 
    to be determined by the
trier
of fact.  The 
    issues are distinct even where, as here, the trial is before a judge alone.

[15]

The 
    trial judge considered that the facts had parallels with the facts of
B. (K.G.)
.  
    In that case four individuals were present when the victim was fatally stabbed 
    by one of them, and three gave statements that it was the fourth person, the 
    accused, who had the knife.  Each of the three recanted their statements 
    at trial.  Lamer C.J., for the majority of the Supreme Court, decided 
    that admissibility would depend on indicia of reliability that would substitute 
    for the lack of an oath or affirmation in court, lack of contemporaneous cross-examination, 
    and the inability of the
trier
of fact to observe 
    the demeanour of the witness at the time the prior statement was made.  
    Here the statement was videotaped and the trial judge was able to view Masons 
    demeanour.  He noted that all three of the
B. (K.G.)
witnesses 
    were suspects and had motives to misrepresent the facts.  The statements 
    were not made on oath or affirmation.

[16]

In
Khelawon
,
Charron
J. viewed the availability of the
declarants
as 
    the most important contextual factor supporting threshold reliability in
B. 
    (K.G.)
.  The question is whether the
trier
of fact will be in a position to rationally evaluate the evidence.  [
para
76]  The three witnesses 
    in
B. (K.G.)
recanted their prior statements in testimony the 
    trial judge rejected as not credible.  The Supreme Court concluded that 
    notwithstanding that the witnesses were lying, it was open to the trial judge 
    to compare their testimony with their prior statements for the purpose of 
    determining whether the prior statements were sufficiently reliable to be 
    admissible.  The Court repeated this passage from the opinion of Lamer 
    C.J. in
B. (K.G.)
(at
para
79):

In 
    considering what would constitute an adequate substitute in respect of the 
    prior inconsistent statement, he concluded (at pp. 795-96) that there will 
    be "sufficient circumstantial guarantees of reliability" to render 
    such statements substantively admissible where




(
i
)





the 
          statement is made under oath or solemn affirmation following a warning 
          as to the existence of sanctions and the significance of the oath or 
          affirmation, (ii) the statement is videotaped in its entirety, and (iii)
the opposing party ... has a full opportunity to cross-examine the 
          witness respecting the statement ...
Alternatively, other circumstantial 
          guarantees of reliability may suffice to render such statements substantively 
          admissible, provided that the judge is satisfied that the circumstances 
          provide adequate assurances of reliability in place of those which the 
          hearsay rule traditionally requires.[emphasis added].





[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.  In these circumstances, the presumption of inadmissibility can 
    only be overcome if the circumstances demonstrate a degree of reliability 
    that it can be admitted into evidence in the search for truth without undermining 
    the integrity of the trial process that normally depends on the right of an 
    accused to test the evidence against him through cross-examination.

[18]

The 
    trial judge concluded that the reliability of the statement was confirmed 
    by the references to the chair incident.  There was no error in principle 
    in comparing the statement with the evidence of Mr.
Leblond
and Mr.
Doell
, but I think he misapprehended the 
    importance of the comparison.  It does not confirm features of Masons 
    statement that were essential to a conviction.  It confirms that Mason 
    was probably one of a group of five individuals in the vicinity of the attempted 
    robbery but it does nothing to confirm the identity of the two individuals 
    who entered the
Leblond
residence.  That was 
    critical to at least one of the three appellants who did not enter the
Leblond
residence.  Moreover, the statement is entirely 
    self-serving in its assertion that there was a common intention of the others 
    to rob Mr.
Leblond
, but he was not a party to that 
    agreement and counselled against it.

[19]

Apart 
    from the limited significance of the comparison, the trial judge had only 
    the videotape of the statement.  He was able to assess Masons demeanour 
    during the interview, but there was no contemporaneous cross-examination or 
    equivalent testing of Masons account. Masons intransigent recantation insulated 
    the statement from any meaningful test of its reliability at trial, apart 
    from the demonstration of Masons total unreliability as a witness.

[20]

Mason 
    was under arrest when he gave the statement and, as the interviewing officer 
    pointed out to him, he was 18 and potentially facing adult consequences; 
    the stakes for him were higher than for the others.  Mason was released 
    from custody shortly after the statement was taken and he was never charged.  
    He had a strong motive to misrepresent the facts to exculpate
himself
by incriminating the others.  His interest in 
    misrepresenting facts to exculpate
himself
was obviously 
    strong.

[21]

In
B. (K.G.)
there were three witnesses and three prior statements 
    which provided a basis for comparison.  The statements were taken independently 
    from the three witnesses in circumstances that underlined the duty to tell 
    the truth, and they were consistent on the essential facts.  The witnesses 
    were potential suspects but they were not under arrest and gave statements 
    voluntarily in the presence of their parents and in one case a lawyer.  Here 
    there is only one
declarant
who had no credibility 
    as a witness and whose prior statement lacks confirmation on facts essential 
    to a conviction.  To admit the statement under the principled exception 
    the trial judge had to overcome the presumption against admissibility in circumstances 
    where he must attribute credibility to a
declarant
totally lacking in credibility as a witness on an assessment of demeanour 
    in the absence of contemporaneous cross-examination and worthless evidence 
    at trial.  In my view, he misapprehended the extent of confirmation to 
    be derived from the chair incident and in that respect fell into error.  Overall 
    I do not think that the trial judge was in a position to rationally evaluate 
    the evidence in terms of its reliability on facts essential to a conviction 
    and therefore the presumption against admissibility could not be overcome.  
    In my view, the statement could not be relied upon in the search for truth 
    and the integrity of the trial process was compromised by its admission.  I 
    would allow the appeals accordingly.

[22]

As the Crowns case 
    depended on the admissibility of the statement, no point would be served by 
    directing a new trial.  I would set aside the convictions and direct 
    that acquittals be entered.

The Honourable Mr. Justice Mackenzie



I Agree:

The
Honourable

Mr. Justice Donald

I Agree:

The
Honourable

Mr. 
    Justice Low






