





CITATION: R. v. Youvarajah, 2011 ONCA 654



DATE: 20111020



DOCKET: C51970



COURT OF APPEAL FOR ONTARIO



Winkler C.J.O., and Moldaver and Simmons JJ.A.



BETWEEN



Her Majesty the Queen



Appellant



and



Yousanthan Youvarajah



Respondent



James K. Stewart, for the appellant



Philip Campbell and Jonathan Dawe, for the respondent



Heard: May 19, 2011



On appeal from the directed verdict of acquittal entered by
          Justice P. J. Flynn of the Superior Court of Justice, sitting with a jury, on
          March 17, 2010.



Simmons J.A.
:



I.         Overview

[1]

The Crown appeals from a directed verdict of acquittal entered in favour
    of the respondent, Yousanthan Youvarajah, on a charge of first degree murder.

[2]

Andrew Freake was shot and killed during a drug deal that went wrong. The
    respondent had arranged to buy marijuana from Freake and was accompanied to the
    deal by a young person, D.S., and two other young men. Various witnesses identified
    D.S. as the shooter. While accepting that D.S. was the shooter, the Crown alleged
    that the respondent arranged the shooting because Freake short-changed him on
    two previous drug transactions.

[3]

D.S. and the respondent were arrested and charged with first degree
    murder within days of the shooting. However, because D.S. was a young person,
    their trials proceeded separately.

[4]

After his youth court trial began, D.S. pleaded guilty to second degree
    murder with the consent of the Crown. D.S., his two trial counsel and the trial
    Crown all signed an agreed statement of facts that was read-in and filed during
    the guilty plea proceeding (the Agreed Statement of Facts).

[5]

Among other things, the Agreed Statement of Facts stipulated that the
    respondent:

·

gave D.S. the handgun used in the shooting;

·

told D.S. to shoot Freake at some point during the drug deal; and

·

demanded the handgun back shortly after the shooting.

[6]

At the respondents trial, D.S. testified and confirmed that he shot
    Freake. However, contrary to the account set out in the Agreed Statement of
    Facts, he claimed that he obtained the murder weapon during a previous break and
    enter; that he shot Freake because Freake was speaking disrespectfully; and
    that, after the shooting, he threw the murder weapon into a river.

[7]

After D.S. recanted the portions of the Agreed Statement of Facts that
    were central to the Crowns case against the respondent, the Crown applied to
    have the Agreed Statement of Facts admitted as evidence capable of proving the
    truth of its contents.

[8]

The trial judge dismissed the Crowns application, holding that the
    Agreed Statement of Facts did not meet the standard of threshold reliability necessary
    for admissions under the principled approach to hearsay evidence. At the close
    of the Crowns case, the trial judge granted the respondents application for a
    directed verdict of acquittal.

[9]

The main issue on appeal is whether the trial judge erred by refusing to
    admit the Agreed Statement of Facts as evidence capable of proving the truth of
    its contents.
[1]


[10]

The Crown acknowledges that such a ruling involves a discretionary
    weighing of relevant factors. However, the Crown submits that the trial judge
    made three errors in law in assessing the threshold reliability of D.S.s prior
    statement and that, absent such errors, the admissibility ruling may well have
    been different:

1.         he treated the opportunity to
    cross-examine D.S. as largely illusory;

2.         he
    failed to properly assess circumstantial indications of the reliability of the Agreed
    Statement of Facts; and

3.         he
    treated motive to fabricate as going to threshold, rather than ultimate
    reliability.

[11]

For the reasons that follow, I accept the Crowns first and second
    submissions. As I am satisfied that the trial judges ruling on the
    admissibility of the Agreed Statement of Facts would not necessarily have been
    the same but for these errors, I would allow the appeal and order a new trial.

II.        Background

(i) Evidence at the respondents trial
    relating to the shooting

[12]

It was admitted at the respondents trial that 19-year-old Andrew Freake
    was killed between 8 and 9 p.m. on Thursday, October 11, 2007 at Clyde Park in
    the Township of North Dumfries (near Cambridge) and that the cause of death was
    a gunshot wound to the chest.

[13]

Evidence was led at trial indicating that Freake was an occasional drug
    dealer and that, two days prior to his death, he short-changed the respondent
    by a gram or two on two separate sales of cocaine. In turn, the respondent
    hatched a plan to rob Freake. D.S. was present when the respondent discovered
    he had been short-changed and was a willing participant in the plan.

[14]

The respondent called Freake and arranged to buy one and a half pounds
    of marijuana. The purchase was originally scheduled to take place on Wednesday,
    October 10, 2007 but was postponed to the next day. Freake obtained the
    marijuana on spot, meaning he was to pay his supplier as soon as he completed
    his sale to the respondent.

[15]

After an initial meeting with Freake in an apartment building and some
    other delays, the respondent directed his companions to a local social club
    where the deal could take place. The respondents group was in an SUV driven by
    Abishaik Shinde. D.S. was in the front passenger seat, the respondent was in
    the backseat behind D.S., and Raibeen Mohammad was in the backseat behind Shinde,
    the driver. Freake and two friends were in a car driven by Freake.

[16]

When the parking lot at the social club proved too crowded to do a drug
    transaction, the respondent suggested a second social club and asked Freake to
    meet them there. When that location was also busy, the respondent told Shinde
    to drive to Clyde Park. Freake and company followed the respondent and his
    friends.

[17]

Once at the park, Shinde pulled the SUV onto a grassy area and Freake
    parked in a parking lot. Freake and a friend, Josh DesRoches, approached the
    SUV carrying the marijuana contained in three plastic bags. Freake stood at the
    drivers window of the SUV; DesRoches at the rear passenger window on the
    drivers side.

[18]

Two small bags of marijuana were passed into the SUV so the purchasers
    could test it. When Freake refused to pass a third bag into the car, D.S.
    pulled out a small handgun, extended his arm behind Shindes (the drivers)
    head and shot Freake in the chest. Shinde testified that the respondent was
    trying to pull a wad of cash from his pants pocket at the time the shot was
    fired.

[19]

Shinde suffered a burst eardrum as a result of the shooting. However, he
    recalled both the respondent and Mohammad saying to D.S.: Why the fuck did you
    do that? Mohammad recalled the respondent telling D.S., Get the fuck out of
    the car with that. According to Shinde, during the drive home, the respondent
    threatened that anyone who said anything would get fucked up and he suggested
    that they needed to toss the gun.

[20]

The next day Shinde went to the respondents house and found him reading
    news reports about the shooting on a computer. The respondent said that Freake
    was dead and just kept saying like -- how [D.S.] was an idiot and shouldn't have
    done what he did and that we were all going to be responsible for -- for the
    shooting, for the death.

[21]

Shinde and the respondent discussed how they might conceal their
    involvement. They bought cleaning supplies and, after Shindes mother brought
    her SUV home from work, they drove it into the countryside and cleaned the
    interior. Even so, forensic examiners later found large quantities of gunshot
    residue both inside the SUV and on Shindes shirt.

(ii) Evidence that the respondent
    planned to rob Freake and that he possessed a gun

[22]

Andrew Vongkham was with the respondent and D.S. at the time of the two
    cocaine purchases that preceded the shooting. He was the first witness at trial
    and gave evidence about the cocaine purchases from Freake, about the respondent
    being short-changed by Freake and about the respondents plan to steal drugs
    from Freake. He also claimed to have seen the respondent with a small handgun
    on two or possibly three occasions.

[23]

A firearms expert testified that the gun Vongkham described was one of
    the numerous models that could have fired the shot that killed Freake. However,
    there was no direct evidence at trial that the respondents gun was actually
    the murder weapon or that he ever gave it to D.S.

[24]

At its highest, Vongkhams evidence was capable of establishing that the
    respondent was in possession of a small black Colt Mustang handgun at some time
    prior to the murder, as well as on the day following the murder, and that a
    Colt Mustang could have been the murder weapon.

III.      The
    Crowns Application to Admit the Agreed Statement of Facts for the Truth of its Contents

[25]

D.S. was the second witness at the respondents trial. Following some
    preliminary questions, he confirmed that he shot Freake and that he pleaded
    guilty to the second degree murder of Freake. However, when asked where he got
    the gun, he claimed to have had it for a long time and denied that anyone gave
    it to him.

[26]

Although D.S. identified his signature on the Agreed Statement of Facts and
    read out the words I have read and understand and agree to the facts contained
    in this agreed statement of fact that appeared above his signature, he said he
    did not remember signing it. Further, he claimed he did not remember the facts
    read in at his guilty plea.

[27]

As his examination in-chief progressed, D.S. explained that he got the
    murder weapon during a break and enter and that he sometimes carried it for
    protection. He said he shot Freake because Freake was speaking loudly and
    angrily and was refusing to pass any more marijuana into the car. He denied
    giving the gun to the respondent and said he threw it into the Grand River in
    downtown Cambridge. Apart from the shooting, he professed little memory of the events
    on the day of the shooting.

[28]

During a break in the proceedings, the trial Crown indicated he intended
    to apply to cross-examine D.S. under s. 9(2) of the
Canada Evidence Act
.
    While acknowledging that D.S. now essentially disavowed the Agreed Statement of
    Facts, defence counsel conceded that it was proven
[2]
and that there were inconsistencies between the statement and D.S.s trial
    testimony.

[29]

However, defence counsel made it clear that he intended to exercise his
    right, under the s. 9(2) procedure, to cross-examine D.S. on the circumstances
    in which the statement was made  particularly about the extent to which D.S.
    was aware that his signature meant that he was adopting as true the five or
    six pages [of the Agreed Statement of Facts].

[30]

Such cross-examination would be aimed at determining whether the Agreed
    Statement of Facts was sufficiently reliable to permit even cross-examination
    by the Crown under s. 9(2). This, defence counsel said, would take them knee
    deep into questions about solicitor client privilege  and he suggested that D.S.s
    trial counsel or an independent lawyer be put on notice to give D.S.
    independent legal advice about solicitor-client privilege. The trial judge
    asked the trial Crown to start that process.

[31]

Crown counsel, in turn, indicated that depending how the defence
    cross-examination went, he would seek to call further witnesses on the s. 9(2)
voir
    dire
. For example, D.S.s defence counsel at trial, or Sergeant Durval
    Goncalves, the investigating officer who was present when the Agreed Statement
    of Facts was drafted. Further, the trial Crown made his position clear that if D.S.
    answered questions, during the defence cross-examination, concerning whether it
    was explained to him that he was adopting the entire statement, the Crown would
    take the position that D.S. had waived solicitor-client privilege.

[32]

As matters developed, D.S. was provided with legal advice about
    solicitor-client privilege by an independent lawyer, a Mr. Marentette. After
    speaking to D.S., Mr. Marentette advised the court that D.S. does not
    intend in any way or on any item to waive solicitor-client privilege with
    respect to his dealings with trial counsel leading up to his plea and
    sentencing.

[33]

Upon hearing that D.S. did not intend to waive solicitor-client
    privilege, defence counsel indicated his cross-examination would be greatly
    circumscribed in that the true meat of [his] potential cross-examination [was]
    now foreclosed. Although he still intended to cross-examine D.S., he said that,
    as an officer of the court, he could not possibly now ask all the questions he
    had intended to ask. The trial judge responded, I leave that to you.

[34]

Crown counsel too indicated that, in the light of D.S.s position, he
    did not anticipate calling further witnesses. In response, the trial judge
    confirmed that D.S.s lawyers at the guilty plea proceeding were not to be
    called as witnesses:

Crown counsel: And I dont anticipate even now
    given the comments of Mr. Marentette I dont anticipate needing to call further
    witnesses.

The Court:
Well, no legal witnesses that have
    spoken to this man anyway
.

Crown counsel: Right.

The Court:
Right. I mean were going to take Mr.
    Marentettes word as the final word on that
. [Emphasis added.]

[35]

Defence counsel proceeded with his cross-examination of D.S. He began by
    telling D.S. that he was not going to ask any questions that would breach
    solicitor-client privilege, and that if he did so inadvertently, it would not
    be held by the court to be a breach of D.S.s privilege.

[36]

The bulk of defence counsels cross-examination was directed at
    confirming that prior to his guilty plea on September 17, 2009, D.S. had never
    attempted to implicate the respondent in any way. D.S. was unable to recall
    whether he saw the Agreed Statement of Fact prior to September 17, 2009. He
    confirmed that, although he had an opportunity to read the Agreed Statement of
    Fact from start to finish, he encountered some difficulties when reading it 
    and when he did, he just moved on in the document. In re-examination by the
    Crown, D.S. confirmed he did not recall when he read the Agreed Statement of
    Fact.

[37]

Following defence counsels cross-examination of D.S., defence counsel
    essentially conceded the s. 9(2) application and acknowledged that the Crown
    should be entitled to cross-examine D.S. in the presence of the jury on the
    Agreed Statement of Facts.

[38]

During the course of the Crowns cross-examination, D.S. confirmed that
    he remembered a number of the events set out in the Agreed Statement of Facts.
    He also confirmed that Crown counsel read out the Agreed Statement of Facts at
    his guilty plea proceeding. Further, D.S. agreed that following an inquiry by
    the presiding judge at the guilty plea proceeding, he acknowledged that the
    facts set out in the Agreed Statement of Facts were accurate in the following
    exchange:

The Court: [Mr. S.], through Mr.
    Smart, I take it by virtue of the signature and the fact that this is entitled
    agreed statement of fact that it is such but is there anything [Mr. S.],
    through you, Mr. Smart, wishes to say about the agreed statement of fact or any
    other additional information you want to put forward?

Crown counsel: Sorry, your Honour,
    I'm just going to rise at this point and request that any statement at this
    point by [Mr. S.] not be made through Mr. Smart but be made by [Mr. S.] himself
    and the agreement to the facts be made by [Mr. S.] himself, on top of the
    signature.

Mr. Smart: Thank you, your Honour.
    I think I can take care of the concern of [Crown counsel] and of the Court. [Mr.
    S.] acknowledges that the facts set out in the agreed statement of fact are
    accurate and he stands behind them. Is that correct, sir?

D.S.: Yes.

[39]

Later in his cross-examination, D.S. denied the respondent gave him a
    gun prior to the shooting. After doing so, D.S. confirmed: i) the Agreed
    Statement of Facts included a statement that the respondent gave him the gun; ii)
    he understood that statement in the Agreed Statement of Facts; and iii) he
    recalled the Agreed Statement of Facts being read out at his guilty plea
    proceeding. However, D.S. claimed he did not know what the words acknowledge
    and accurate mean.

[40]

Nonetheless, D.S. subsequently confirmed that he had agreed, at his
    guilty plea proceeding, to statements in the Agreed Statement of Facts to the
    effect that the respondent told him to shoot Freake when he gave D.S. the gun
    and also that, following the shooting, the respondent demanded the return of
    the gun  facts that D.S. now denied.

[41]

In re-examination by defence counsel, D.S. said he did not remember
    everything that happened on September 17, 2009 very clearly, but he confirmed
    that he understood that if he pleaded guilty to second degree murder the police
    would not require a statement from him and that motivated him to plead guilty.

[42]

Following his cross-examination of D.S. in the presence of the jury,
    Crown counsel called Sergeant Durval Goncalves to provide evidence on the
    Crowns application to have the Agreed Statement of Facts admitted for the
    truth of its content.

[43]

According to Sergeant Goncalves, the trial Crown was primarily
    responsible for drafting the Agreed Statement of Facts. However, the trial
    Crown did so in the presence of, and with some input from, D.S.s defence
    counsel.  Two or more drafts of the Agreed Statement of Facts were prepared.
    Both the trial Crown and defence counsel reviewed the drafts. One of the
    defence counsel took the drafts away as they were prepared and later returned with
    minor editing changes.

[44]

Sergeant Goncalves also confirmed that he informed defence counsel that
    the police would not require a statement from D.S. to support his plea.

[45]

In re-examination, Sergeant Goncalves testified that it was defence
    counsel who provided the information concerning where the gun came from.

[46]

Although the Crown had alluded, earlier in the proceeding, to the
    possibility of making an application under s. 9(1) of the
Canada Evidence
    Act
to have D.S. declared adverse, he did not pursue that application.


IV.     The
    Trial Judges Reasons for Dismissing the Crowns Application to Admit the
    Agreed Statement of Facts for the Truth of its Content

[47]

The trial judge began the analysis portion of his reasons by observing
    that, because D.S. had recanted material portions of the Agreed Statement of
    Facts, defence counsel had properly conceded that the necessity criterion for
    substantive admissibility of the statement was satisfied.

[48]

Therefore, the sole issue to be determined was reliability, that the
    circumstances of its making make the contents of the [Agreed Statement of
    Facts] trustworthy and will permit the ultimate trier of fact to assess its
    worth.

[49]

The trial judge noted that in
R. v. B. (K.G.),
[1993] 1 S.C.R.
    740, the Supreme Court of Canada changed the law by replacing the [previous]
    orthodox rule under which prior inconsistent statements could only be used to
    impeach the credibility of a witness. Instead, the Supreme Court introduced a
    principled approach permitting the substantive admissibility of prior
    inconsistent statements in circumstances where the hearsay dangers had been
    adequately addressed.

[50]

The trial judge said [t]his rule was meant to assist in putting the
    triers of fact in the position of fair comparison, vis-a-vis the reliability of
    the prior inconsistent statement with the witnesss testimony at trial.

[51]

The trial judge acknowledged that the new approach does not require
    strict adherence to some formulaic rule, but indicated that generally it requires
    three indicia of reliability, or adequate substitutes for them, before such
    statements can be admitted as substantive evidence. He identified the three
    indicia of reliability as: the recital of an oath or an affirmation when the
    statement is made; presence or the ability of the trier of fact to assess
    demeanour, hence the credibility of the declarant when the statement was made,
    such as in a video; and the ability to cross-examine the declarant at trial.

[52]

Citing
R. v. Trieu
(2005), 74 O.R. (3d) 481 (C.A.), in which this
    court affirmed a decision to admit a prior inconsistent statement where no oath
    had been administered, the trial judge acknowledged that in some circumstances,
    all three indicia of reliability need not be present.

[53]

After reviewing the positions of the parties, the trial judge said that
    if all that were weak or missing here was the oath, he might very well have
    granted the Crowns application. However, he observed that there were defects
    in the other indicia [of reliability] proffered by the Crown.

[54]

The trial judge noted that the prosecutor and the police made a
    deliberate choice not to seek a videotaped statement from D.S. prior to his guilty
    plea or at any time thereafter. The jury would therefore have no opportunity to
    be present to experience D.S.s demeanour at the time the Agreed Statement of
    Facts was read into evidence or when his counsel subsequently asked him to
    acknowledge that the facts were accurate. The trial judge accordingly rejected
    the Crowns submission that the transcript of the guilty plea proceedings was a
    suitable substitute for presence.

[55]

The trial judge also observed that D.S. had never confessed or
    implicated the respondent in the almost two years between his arrest and his
    guilty plea. In these circumstances, the trial judge found it significant that
    solicitor-client privilege precluded questioning D.S. or his trial counsel
    about how the Agreed Statement of Facts came into being. Further, the Agreed
    Statement of Facts was not spontaneous and was not even in D.S.s own words. In
    fact, D.S. testified he did not understand some of the words used. These
    factors undermined not just the ultimate reliability of the statement, but its
    threshold reliability as well.

[56]

As for the third indicia, while acknowledging that D.S. was available
    for cross-examination at trial, the trial judge accepted defence counsels
    submission, premised on
R. v. Conway
(1997), 36 O.R. (3d) 579 (C.A.),
    that cross-examination would be of little value. D.S. had not only recanted his
    prior statement but also had significant memory lapses concerning some of the
    details set out in the Agreed Statement of Facts and also concerning its
    presentation in court.

[57]

The trial judge cautioned himself to examine all the circumstances under
    which the Agreed Statement of Facts was made. He observed that while there was
    no direct evidence of a motive to lie, he could infer such a motive from the
    circumstances. Moreover, D.S. was neither sworn nor warned of penal
    consequences if he later recanted when he signed the Agreed Statement of Facts.
    Further, the police told D.S.s counsel they did not require any other
    statement from him. The trial judge said that these factors may have created an
    impetus for D.S. to accept the Agreed Statement of Facts without question.

[58]

Finally, the trial judge observed that the weaknesses in the indicia of
    reliability could have been easily cured had the prosecution insisted  [on] a
    properly sworn and warned
K.G.B.
video statement.

V.        Analysis

1.    Standard of Review

[59]

The issue on this appeal relates to the admissibility for substantive
    purposes of a prior inconsistent statement of a witness who is not an accused
    person in the proceeding.

[60]

As this court noted in
R. v. S. (S.)
(2008), 232 C.C.C. (3d) 158
    (Ont. C.A.), the admissibility of a hearsay statement for substantive use is
    ultimately a question of law and, therefore, reviewable on a correctness
    standard.

[61]

However, a significant part of the admissibility inquiry requires the
    trial judge to engage in a discretionary weighing of the various factors
    relevant to the inquiry. Accordingly, so long as the trial judge addresses the
    factors germane to the reliability of the hearsay statement, does not fall into
    any material misapprehension of the evidence relevant to those factors and
    makes a reasonable assessment of the weight to be assigned to the various
    factors, the trial judges ruling on admissibility is entitled to deference on
    appeal:
S. (S.)
at para. 30.

2.    Did the Trial
    Judge Err by Refusing to Admit the Agreed Statement of Facts for the Truth of
    its Content?

(i) Did
    the trial judge err in holding that the opportunity to cross-examine D.S. was
    illusory?

[62]

In his ruling, the trial judge appears to have concluded, for two
    reasons, that the opportunity to cross-examine D.S. was illusory concerning
    which of the versions of the events, if either, was the truth. First, this case
    was analogous to the situation in
Conway
, in which this court held that
    the opportunity to cross-examine a recanting witness was illusory. Second, impediments
    created by solicitor-client privilege precluded certain avenues of
    cross-examination.

[63]

Concerning the first reason, the trial judge said:

The third indicium required by
K.G.B.
focuses on the extent to which the declarant is subject to cross-examination on
    his prior statement.
I agree with [defence counsel] when he argues that this
    third strand of the reliability analysis can be rendered valueless in
    circumstances where the declarant recants such as here. [Defence counsel] cited
    the case in R. v. Conway [citation omitted] for the missing integer in the
    equation, when he asks how can one cross-examine a witness who recants their
    prior statement and specifically denies knowledge
?

Mr. Justice Labrosse
    in
Conway
cites Justice Lamer in
U. (F.J.)
:

When a witness takes the stand at the trial and
    under oath gives a different version of the story than one previously recorded,
    doubt is cast on the credibility of the witness and on the truth of both versions
    of the story. This is what effective cross-examiners hope to achieve.

The witness here, [D.S.], had significant memory
    lapses on some of the details set out in his agreed statement of facts. Indeed
    he had significant memory lapses on the presentation of the statement in court.
    And most importantly he testified here at complete odds with the facts set out
    in the guilty plea agreed statement of facts with respect to the critical parts
    of the statement which implicate [the respondent]
by testifying that the
    gun which killed Andrew Freake was his gun all along, one he obtained in a
    break and enter which he committed with someone called Sean which he disposed
    of in the Grand River after the shooting.



Finally I
    would resort to the words
of Mr. Justice Labrosse in his judgment for the
    Court
in Conway
, para. 39:

That the statement had clear indicia of
    reliability is not supported by the evidence. There was no oath, there was no
    videotape and
the opportunity for effective cross-examination at trial was
    to a large extent illusory
.

[Emphasis added.]

[64]

Earlier in his reasons, when addressing the oath and presence
    requirements set out in
B. (K.G.)
, the trial judge touched on the
    solicitor-client privilege issue and concluded that solicitor-client privilege
    effectively precluded a determination of how the Agreed Statement of Facts came
    into being:

Solicitor/client privilege precluded questions to
    or from [D.S.] or indeed of his counsel about how it came to be that this
    concession from [D.S.] as the shooter and his implication of the accused as the
    person who provided him with the gun and directed him to do the shooting was
    made on the day of his guilty plea almost two years after his arrest when he
    had never confessed or implicated [the respondent] in all that time.

[65]

Respectfully, in my view, the trial judge erred in relying on both of
    his identified reasons as a basis for concluding that the opportunity to
    cross-examine was illusory.

[66]

This case is a far cry from the situation in
Conway
.

[67]

In
Conway
, two men were charged with the second degree murder of
    an elderly man who was killed during the course of a break and enter. They
    offered a plea of guilty to manslaughter but denied they had the requisite
    intent for murder because they were high on intoxicating substances at the
    time.

[68]

A witness to certain comments by the accused gave two contradictory
    written statements to the police. In his initial written statement, the witness
    denied any knowledge of the killings. In a subsequent written statement given a
    few days later, the witness implicated the accused in the murder.

[69]

The day after giving the second written statement, the witness refused
    to give a further statement with the
K.G.B.
- recommended safeguards (oath,
    caution and videotape) in place. At trial, the witness could not recall giving
    either written statement to police. The trial judge admitted the witnesss
    second statement for the truth of its content.

[70]

The context for Labrosse J.A.s comments in
Conway
about the
    availability of the witness for cross-examination that were relied on by the
    trial judge is important. Labrosse J.A. began by noting that, in
B.
    (K.G.)
, Lamer C.J. identified lack of contemporaneous cross-examination as
    the most important of the hearsay dangers. Significantly, Lamer C.J. also said
    that it is the most easily remedied danger  because it can be remedied by the
    opportunity to cross-examine at trial.

[71]

It was in that context that, in
Conway
, Labrosse J.A. set out the
    quote from Lamer C.J. in
U. (F.J.)
to the effect that, when a
    witness gives evidence of a prior inconsistent statement by that witness, doubt
    is cast on both versions of the story. Importantly, Labrosse J.A. stated, This
    case is different. There are not two versions.

[72]

Labrosse J.A. went on to emphasize that cross-examination was
    ineffective in
Conway
for the very reason that there were not two
    versions of the story. The witness claimed a lack of knowledge of his prior
    statement. In the result, cross-examination of the witness at trial would not
    afford the trier of fact a satisfactory basis for evaluating the truth of the
    prior statement.

[73]

I appreciate that, in this case, D.S. initially claimed he did not
    recall signing the Agreed Statement of Facts and the facts read-in at his
    guilty plea.

[74]

However, when cross-examined by the Crown, he confirmed that he
    remembered a number of the events set out in the Agreed Statement of Facts. The
    trial judge acknowledged as much in the early part of his reasons when setting
    out the facts. He said:

When cross-examined by the Crown, [D.S.] admitted
    making many of the statements in the agreed statement of fact and conceded that
    many of those statements were true.

[75]

D.S. also confirmed that Crown counsel read out the Agreed
    Statement of Fact at his guilty plea proceeding. In addition, although he
    claimed not to understand the meaning of the words acknowledged and
    accurate in the exchange between him and his counsel at the guilty plea
    proceeding, he recalled the exchange and gave an explanation for it  lack of
    understanding of the words acknowledged and accurate. His explanation would
    therefore be available for the jury to assess.

[76]

Further, although D.S. denied the truth of the key facts in the Agreed
    Statement of Facts (the respondent gave him the gun, told him to shoot Freake
    and later demanded the return of the gun), he did not dispute that he
    understood them. On the contrary, he specifically agreed, for example, that the
    Agreed Statement of Facts included a statement that the respondent gave him the
    gun; that he understood that statement; and that he recalled the Agreed
    Statement of Facts being read out at his guilty plea proceeding.

[77]

On the
K.G.B.
application, defence counsel at trial did not
    cross-examine D.S. about his possible motive to lie at the guilty plea
    proceeding. Nonetheless, the trial judge had no difficulty in drawing an
    inference concerning what that motive might be.

[78]

Taking account of these circumstances, in my view, the trial judges
    blanket reliance on
Conway
was misplaced. This was not a situation where
    the witness had no recollection of his prior statement. D.S. recalled many of
    the details in the Agreed Statement of Facts. Moreover, he acknowledged that he
    remembered the Agreed Statement of Facts being read out in court  including
    the key portions that he claimed at trial were not true.

[79]

In my opinion, the trial judge erred in law by failing to closely
    examine what D.S. remembered about the prior statement and its presentation in court
    and by failing to assess:

·

whether it could properly be said that two versions of the events
    were before the court; and

·

whether the extent of D.S.s recollection would afford sufficient
    scope to assist the jury in assessing which, if either, version was true.

[80]

The trial judges second reason for concluding that the opportunity to
    cross-examine was illusory was that solicitor-client privilege precluded
    questioning D.S. and his counsel about the circumstances under which D.S. came
    to plead guilty and implicate the respondent after maintaining his innocence
    for about two years  in other words, about the circumstances under which the
    Agreed Statement of Facts came into being.

[81]

Respectfully, this reflects a misunderstanding of the scope of
    solicitor-client privilege. Many questions could have been put to both D.S. and
    his counsel about the circumstances under which the Agreed Statement of Facts
    came into being without infringing solicitor-client privilege.

[82]

In the absence of waiver or a recognized exception, solicitor-client
    privilege prohibits disclosure of oral or documentary communications between
    solicitor and client where the communications are made in connection with
    obtaining or providing legal advice and are intended to be confidential: Sopinka,
    Lederman & Bryant,
The Law of Evidence in Canada
, 3
rd
ed.
    (Markham, Ont.: LexisNexis Canada, 2009) at 14.43; Hubbard et al,
The Law of
    Privilege in Canada
, Vol. 2, looseleaf (Aurora, Ont.: Canada Law Book,
    2011) at 11:10.

[83]

See also
Wigmore on Evidence
, vol. 8, (McNaughton rev. 1961),
    sec. 2292, at p. 554, where the following is stated:

Where legal advice of any kind is sought from a
    professional legal adviser in his capacity as such, the communications relating
    to that purpose, made in confidence by the client, are at his instance
    permanently protected from disclosure by himself or by the legal adviser,
    except the protection be waived.

[84]

However, solicitor-client privilege did not prohibit questioning D.S.
    about his understanding of the Agreed Statement of Facts, any conditions that
    may have been attached to the plea deal (such as whether he would be required
    to testify at the respondents trial) and the consequences of misleading the
    police, the Crown and the court; it did not prohibit questioning D.S. about his
    motives for making what he now claimed were three false statements in the
    Agreed Statement of Facts; and it did not prohibit questioning D.S. about
    matters he instructed his counsel to communicate to the Crown and to the court.

[85]

The first two areas of questions related to what was in D.S.s mind. Although
    his understanding of the Agreed Statement of Facts and the plea deal and his
    motivation for entering into it may have been informed at least to some extent
    by solicitor-client communications, the questions and answers in these areas need
    not have revealed those communications.

[86]

For example, at least some questions concerning D.S.s understanding of
    the Agreed Statement of Facts were put to him by the Crown without any difficulties
    over solicitor-client privilege. As an example, D.S. claimed not to have
    understood certain portions of the Agreed Statement of Facts. Nonetheless, he
    agreed that he understood the phrase: Yousanthan Youvarajah gave D.S. a small
    black handgun. He also agreed that that phrase was read out at his guilty plea
    proceeding.

[87]

And while D.S. claimed not to understand the words acknowledge and
    accurate used by his counsel during the guilty plea proceeding, in the
    following exchange, he acknowledged that he had agreed, at the guilty plea
    proceeding, to the correctness of certain facts:

Q. Okay. I'm going to read you a little from the
    agreed statement of fact, okay?

When he was given the gun, [D.S.] was told by
    Yousanthan Youvarajah to shoot Mr Freake sometime during the course of the drug
    rip-off.

Do you remember me reading that out?

A. Yes.

Q. Okay. And you remember you agreed to the facts
    later on?

A. Yes.

Q. When your  when
    your counsel asks you is that correct, sir, you're saying yes?

A. Yeah.

[88]

Further, although defence counsel claimed that the true meat of [his]
    potential cross-examination [was]  foreclosed because D.S. would not waive
    solicitor-client privilege, he had no difficulty eliciting evidence that one of
    the factors that led D.S. to plead guilty was the fact that he would not have
    to provide a statement. Further, during cross-examination after the trial
    judges ruling declining to admit the Agreed Statement of Facts for the truth
    of its content, defence counsel had no difficulty eliciting evidence about D.S.s
    motive to lie at the guilty plea proceeding:

Q. You'll also agree with me, sir, that the
    document that you signed contained information which you knew to be wrong and
    you still signed it, true?

A. Yes.

Q. And you did all of this, sir, because it was
    allowing you to get to the end game that day which was pleading to second
    degree murder, correct?

A. Yes.

[89]

Concerning the third area of questions (D.S.s instructions to counsel
    concerning matters to be communicated to the Crown or to the court),
    communications between solicitor and client that are not intended to be
    confidential are not subject to privilege. Accordingly, solicitor-client
    privilege was not a bar to asking D.S. questions about what he instructed his
    counsel to communicate to the Crown or to the court; about when he provided
    those instructions; and about what he knew about the Crown theory at the time
    he provided his instructions.

[90]

Similarly, solicitor-client privilege did not prevent questioning D.S.s
    counsel about their discussions with the Crown  either about things they
    advised the Crown on D.S.s instructions or about things the Crown said to them.

[91]

Nor did solicitor-client privilege prevent questioning D.S.s counsel
    concerning the instructions they had from D.S. about what they could say in open
    court during the guilty plea proceeding  in particular, concerning D.S.s
    understanding of the Agreed Statement of Facts. Finally, solicitor-client
    privilege did not prevent questioning D.S.s counsel, or anyone else present,
    about D.S.s demeanour during the guilty plea proceeding:
B. (K.G.)
at
    para. 101.

[92]

It seems to me that these areas of questions presented a potentially
    broad scope for cross-examination about the circumstances under which the
    Agreed Statement of Facts came into being and about its presentation in court.

[93]

Unfortunately however, from the moment that the issue of solicitor-client
    privilege arose, counsel and the trial judge appear to have been of the mistaken
    view that it would preclude at least some of this questioning.

[94]

Defence counsel expressed that view when he said, the true meat of
    [his] potential cross-examination [was] now foreclosed. The Crown did so as
    well when he indicated, after hearing from Mr. Marentette, that he did not
    anticipate needing to call further witnesses.

[95]

Finally, the trial judge put his stamp of approval on this approach  and
    effectively prevented the Crown from reconsidering calling D.S.s counsel  when
    he said no legal witnesses that have spoken to this man should be called.

[96]

The result of this mistaken understanding appears to have been at least
    twofold. First, it appears that the Crown refrained from calling D.S.s counsel
    as witnesses.

[97]

Second, the trial judge erred in law when he made the blanket statement
    that solicitor-client privilege precluded questioning D.S. or his counsel about
    how it came to be that, after two years of maintaining his innocence, D.S.
    chose to plead guilty and implicate the respondent.

[98]

Although I acknowledge that issues about solicitor-client privilege
    might have arisen, depending on D.S.s (or his counsels responses) to
    questions asked in the areas I have identified, the fact remains that many more
    questions could have been asked and answered without infringing
    solicitor-client privilege.

[99]

If issues about solicitor-client privilege had arisen, it would have
    been for the trial judge, at that point, to assess the scope of
    solicitor-client privilege and also to determine whether D.S.s answers
    amounted to an implicit waiver. I will return later to the subject of implicit
    waiver of solicitor-client privilege.

(ii) Did the trial judge fail to
    properly assess circumstantial indications of the reliability of the Agreed
    Statement of Facts?

[100]

In
    addition to finding that the opportunity for cross-examination was illusory,
    the trial judge relied on the following factors as detracting from the
    threshold reliability of the Agreed Statement of Facts:

·

the lack of presence in that the jury would have no opportunity
    to be present to experience D.S.s demeanour when the Agreed Statement of
    Facts was read into evidence or when his counsel subsequently asked him to
    acknowledge that the facts were true;

·

the Agreed Statement of Facts was not spontaneous, it was not in D.S.s
    own words and D.S. claimed he did not understand some of the words used in the
    Agreed Statement of Facts;

·

when he signed the Agreed Statement of Facts, D.S. was neither
    sworn nor warned of the penal consequences if he later recanted;

·

the police told D.S.s counsel they would not require any other
    statement from D.S.; and

·

although there was no direct evidence of a motive to lie, the
    trial judge was able to infer one from the circumstances.

[101]

I will
    deal with the significance of the presence of a motive to lie in the next
    section. Concerning the other factors, respectfully, in my opinion, the trial judge
    erred by focusing unduly on the level of compliance with the
B. (K.G.)
recommended safeguards for ensuring threshold reliability and by failing to
    consider whether other factors present in this case were sufficient to support
    substantive admissibility of the Agreed Statement of Facts.

[102]

B.
    (K.G.)
no doubt provides an appropriate starting point for gauging the
    admissibility for substantive use of a prior inconsistent statement of a
    non-accused witness.

[103]

However,
B.
    (K.G.)
, and the Supreme Courts subsequent decisions in
R. v. U. (F.J.)
,
    [1995] 3 S.C.R. 764 and
R. v. Khelawon
, [2006] 2 S.C.R. 787, all make it
    clear that the
B. (K.G.)
recommended safeguards were never intended to
    create an exclusive category for the admissibility of prior inconsistent
    statements. I will briefly review those cases before turning to my discussion
    of this issue.

(a)
B.
    (K.G.)
,
U. (F.J.)
and
Khelawon

[104]

B.
    (K.G.)
followed on the heels of the Supreme Court of Canadas decisions in
R.
    v. Khan
, [1990] 2 S.C.R. 531 and
R. v. Smith
, [1992] 2 S.C.R. 915,
    in which the Supreme Court of Canada adopted a principled approach to the
    admissibility of hearsay evidence premised on establishing sufficient necessity
    and reliability to justify its admission.

[105]

In
B. (K.G.)
,
    the Supreme Court of Canada revisited the orthodox rule prohibiting substantive
    use of unadopted prior inconsistent statements and held that such statements could
    be admissible for substantive use if the principles of necessity and
    reliability underlying the new principled approach to hearsay outlined in
Khan
and
Smith
could be satisfied.

[106]

However,
    given the particular problems raised by prior inconsistent statements, Lamer
    C.J.C. stated

that the factors of reliability and necessity must be
    adapted and refined [in that context]:
B. (K.G.)
at para. 73.

[107]

In the
    case of a recanting witness, necessity arises because the recanting witness
    holds the prior statement, and thus the relevant evidence, hostage:
B. (K.G.)
at para. 110.

[108]

As for
    reliability, Lamer C.J.C. noted at para. 82 that [t]he reliability concern is
    sharpened in the case of prior inconsistent statements because the trier of
    fact is asked to choose between two statements from the same witness, as
    opposed to other forms of hearsay in which only one account from the declarant
    is tendered.

[109]

Because
    the focus of the inquiry in the case of prior inconsistent statements is on
    the comparative reliability of the prior statement and the testimony offered at
    trial Lamer C.J.C. concluded that additional indicia and guarantees of
    reliability to those outlined in
Khan
and
Smith
must thus be
    secured in order to bring the prior statement to a comparable standard of
    reliability before such statements are admitted as substantive evidence.

[110]

Having
    previously identified the traditional hearsay dangers at para. 32 (the absence
    of an oath or solemn affirmation when the statement was made, the inability of
    the trier of fact to assess the demeanour and therefore the credibility of the
    declarant when the statement was made (as well as the trier's inability to
    ensure that the witness actually said what is claimed), and a lack of
    contemporaneous cross-examination by the opponent), Lamer C.J.C. proceeded to
    consider what substitute indicia of trustworthiness might suffice to permit
    reception of prior inconsistent statements.

[111]

Ultimately,
    Lamer C.J.C. formulated a revised rule containing three components that would
    provide sufficient guarantees of trustworthiness to warrant the admission of a
    prior inconsistent statement: 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, whether the Crown or the defence, has a
    full opportunity to cross-examine the witness respecting the statement. See
    paras. 86-104.

[112]

However, Lamer
    C.J.C. emphasized throughout his discussion that there could be other
    circumstantial guarantees of reliability that would suffice to render such
    statements substantively admissible. See, for example, paras. 96, 101 and 104.

[113]

In the
    subsequent case of
U. (F.J.),
the recanting witness was available for
    cross-examination at trial but her statement was not videotaped, nor was it
    taken under oath and there was no warning. In that case, Lamer C.J.C. placed
    considerable reliance on the availability of the witness for cross-examination
    but also maintained the requirement for some additional indicia of reliability.
    In
U. (F.J.)
, he found that indicium in the fact that the recanting
    witnesss prior statement was strikingly similar to the accuseds own
    statement.

[114]

Importantly,
    Lamer C.J.C. emphasized, at para. 39 of
U. (F.J.)
, that in certain
    particular circumstances a prior inconsistent statement could be admitted even
    in the absence of an oath and a video record, but not in the absence of
    cross-examination.

[115]

In
Khelawon
,
    an issue was raised concerning whether the


U. (F.J.)
 exception could
    be extended to the facts of that case. At para. 45 of
Khelawon,
Charron
    J. went to some lengths to explain that neither
B. (K.G.)
nor
U.
    (F.J.)
should be interpreted as creating categorical exceptions to the rule
    against hearsay based on fixed criteria. Rather, she indicated that these
    cases should be viewed as provid[ing] guidance -- not fixed categories -- on
    the application of the principled case-by-case approach [to the admission of
    hearsay evidence] by identifying the relevant concerns and the factors to be
    considered in determining admissibility:
Khelawon
at para. 45.

[116]

Importantly,
Charron
J. noted at para. 61 of
Khelawon
that under the principled approach, the reliability requirement is aimed at
    identifying those cases where the central underlying concern about the
    inability to test hearsay evidence is sufficiently overcome to justify
    receiving the evidence as an exception to the general exclusionary rule.

[117]

She also
    observed that the reliability requirement is usually met in two different ways.
    One way is to show that there is no real concern about whether the statement is
    true because of the circumstances in which it came about. Another way is to
    show that no real concern arises from the fact that the statement is presented
    in hearsay form because, in the circumstances, truth and accuracy can
    nonetheless be sufficiently tested:
Khelawon
at paras. 62 and 63.

[118]

Charron J.
    cited
B. (K.G.)
as an example of a case where the admissibility of prior
    inconsistent statements was based on the presence of adequate substitutes for
    testing the evidence. In
U. (F.J.)
, on the other hand, the Court
    considered both those circumstances tending to show that the statement was true
    and the presence of adequate substitutes for testing the evidence:
Khelawon
at para. 66.

[119]

At para.
    76 of
Khelawon
, Charron J. noted that the most important contextual
    factor in
B. (K.G.)
is the availability of the declarant for
    cross-examination. Accordingly, [t]he admissibility inquiry into threshold
    reliability
is not so focussed on the question whether there is reason to
    believe the statement is true, as it is on the question whether the trier of
    fact will be in a position to rationally evaluate the evidence
 (emphasis
    added).

[120]

Charron J.
    also noted at para. 78 that even though the declarant was available for
    cross-examination in
B. (K.G.)
, Lamer C.J.C. emphasized that where the
    hearsay evidence is a prior inconsistent statement, the focus of the inquiry ...
    is on the comparative reliability of the prior statement and the testimony
    offered at trial and therefore additional indicia and guarantees of
    reliability to those outlined in
Khan
and
Smith
must be secured
    in order to bring the prior statement to a comparable standard of reliability:
B. (K.G.)
at para. 82.

[121]

As I have
    said, in
B. (K.G.)
, Lamer C.J.C. considered the general attributes of in
    court testimony that provide safeguards for reliability and formulated a
    revised approach to the admissibility of prior inconsistent statements that
    would provide adequate substitutes for those safeguards such that there would
    be sufficient circumstantial guarantees of reliability to render the prior
    inconsistent statement substantively admissible.

[122]

Importantly
    however, at para. 80 of
Khelawon
, Charron J. observed that [t]o say
    that a statement is sufficiently reliable because it is made under oath, in
    person, and the maker is cross-examined is somewhat of a misnomer. This is
    because [a] lot of courtroom testimony proves to be totally unreliable. She
    added: [h]owever, therein lies the safeguard -- in the
process
that has
    uncovered its untrustworthiness. Hence the presence of adequate substitutes for
    that process establishes a threshold of reliability and makes it safe to admit
    the evidence (emphasis in original).

(b) Discussion

[123]

One of the
    key principles that emerges from a review of the
B. (K.G.)
,
U. (F.J.)
and
Khelawon
decisions is that the focus of the threshold reliability
    inquiry can change depending on the circumstances of the case.

[124]

In this case,
    the Crown could not establish that the
B. (K.G.)
recommended safeguards
    had been complied with. Instead, the Crown offered an Agreed Statement of Facts
    tendered to support a guilty plea in a separate proceeding. However, the Agreed
    Statement of Facts was signed by D.S. and his counsel; D.S. had the opportunity
    to review the statement in private with his counsel; and at least some of the
    crucial information contained in the Agreed Statement of Facts was provided to
    the Crown by defence counsel.

[125]

In these
    circumstances, D.S.s availability for meaningful cross-examination was crucial
    to determining whether the Agreed Statement of Facts met the standard of
    threshold reliability. As I have said, in my view, the trial judge erred in his
    assessment of that issue.

[126]

However, having
    regard to Charron J.s comments in
Khelawon
, the additional question for
    the trial judge was whether, in the particular circumstances of this case,
    there were adequate substitutes present for the other customary court processes
    that either promote reliability or root out untrustworthiness to support the
    admissibility of the Agreed Statement of Facts.

[127]

Viewed in
    this light, some of the factors the trial judge relied on as detracting from
    threshold reliability are of relatively little importance  and the trial judge
    made no mention of other factors that appear to be important.

[128]

For
    example, the lack of presence when the Agreed Statement of Facts was read-in
    at the guilty plea proceeding would seem to take on a diminished level of
    importance where D.S.s participation in the proceeding was limited to saying
    yes in response to two questions from his counsel  the first question was
    aimed at confirming D.S.s plea of guilty to second degree murder and the
    second question was aimed at confirming that the facts set out in the Agreed
    Statement of Facts were accurate.

[129]

Further, the
    fact that the Agreed Statement of Fact was not spontaneous is of little moment
    in the circumstances of this case. Spontaneity goes to the inherent reliability
    of a statement arising from the circumstances in which it was made. However,
    inherent reliability arising from spontaneity was not the Crowns theory of threshold
    reliability.

[130]

In
    addition, it is difficult to understand how the specific language used in the
    Agreed Statement of Facts was of much importance in the circumstances.

[131]

The key
    assertions in the Agreed Statement of Facts for the purposes of the
    respondents trial were: the respondent gave D.S. the gun; the respondent told D.S.
    to shoot Freake during the drug deal; and the respondent demanded the return of
    the gun after the shooting.

[132]

D.S.s
    trial testimony was at complete odds with these assertions  and the
    differences were not matters of language. D.S. claimed he shot Freake with his
    own gun; that he did so because of the way Freake was speaking; and that he (D.S.)
    threw the gun into a river after the shooting. Moreover, D.S. did not deny that
    he understood these three central components of the Agreed Statement of Facts.

[133]

Although
    it is undisputed that D.S. was not sworn when he signed the Agreed Statement of
    Facts, there is no evidentiary foundation for the trial judges finding that D.S.
    was not cautioned about the penal consequences of recanting. There was no evidence
    at trial concerning whether D.S. anticipated testifying at the respondents
    trial, and therefore no basis for drawing an inference concerning whether
    D.S.s counsel would have cautioned him about that issue.

[134]

Lamer C.J.C.
    referred to the existence of such consequences at para. 88 of
B. (K.G.)
where
    he said, in part, the following: A witness who tells one story to the police
    and another at trial is currently exposed to prosecution under ss. 139
    (obstructing justice) and 140 (public mischief) of the
Criminal Code
,
    R.S.C., 1985, c. C-46.
[3]

[135]

In
Trieu
,
    Rosenberg J.A. noted at para. 36 that the
B. (K.G.)
witnesses who were
    accompanied by counsel would have had the opportunity to obtain legal advice,
    advice that would presumably have warned the witnesses of the consequences of
    lying to the police.

[136]Further,
    at para. 99 of
Trieu
, Moldaver J.A., speaking for the majority,
    indicated that it could be taken as a given that a co-perpetrators counsel
    would have explained to him the need to be honest and forthright with the
    court [at his guilty plea proceeding], not only in terms of his role in the
    home invasion but the role of others as well. In part, the reason for this was
    the possibility of further criminal charges.

[137]

In my
    view, the trial judges erroneous conclusion that D.S. was not warned about the
    penal consequences of recanting demonstrates that he failed to adequately
    consider important features of this case that potentially favoured threshold
    reliability  the participation of experienced defence counsel in the preparation
    and presentation of the Agreed Statement of Facts and the solemnity of the
    occasion on which the Agreed Statement of Facts was presented.

[138]

Rather
    than emanating from a police interrogation, the Agreed Statement of Facts was
    the product of discussion(s) between the trial Crown and defence counsel. Importantly,
    there was evidence that at least one critical component of the Agreed Statement
    of Facts was provided by defence counsel  the fact that the respondent gave D.S.
    the gun. And instead of being interrogated by the police, D.S. had the benefit
    of consulting defence counsel in private about the contents of the Agreed
    Statement of Facts. Presumptively, defence counsel would not have been
    complicit in the presentation of an Agreed Statement of Facts that he knew was
    untrue.

[139]

Further, the
    Agreed Statement of Facts was presented and read-in in court in solemn
    circumstances in support of D.S.s guilty plea to second degree murder.

[140]

During the
    course of the guilty plea proceeding, when the Crown asked that D.S. agree to
    the facts himself, experienced defence counsel rose and indicated D.S.
    acknowledges the facts set out in the agreed statement of fact are accurate
    and he stands behind them. Defence counsel then asked D.S. to confirm that
    assertion.

[141]

Presumptively,
    defence counsel was acting on instructions and certifying that D.S. was aware
    of the contents of the Agreed Statement of Facts and, if there was evidence
    that it was part of the plea arrangement that D.S. would have to testify at the
    respondents trial, of the potential consequences of a subsequent recantation.

[142]

The
    circumstances of this case are distinguishable from the circumstances in
R.
    v. Tran
(2010), 257 C.C.C. (3d) 18 (Ont. C.A.). In
Tran
, Epstein
    J.A., speaking for this court, stated at para. 43 that to admit facts
    acknowledged to be substantially correct on a guilty plea in a later trial
    against other accused persons appears  to be so fraught with danger that it
    should be refused in all but the most exceptional cases.

[143]

In this case,
    D.S. signed the Agreed Statement of Facts along with his counsel after having
    had an opportunity to review the document with his counsel. As I have said,
    there was evidence indicating a crucial fact (the source of the gun) in the
    Agreed Statement of Facts came from defence counsel. Moreover, rather than
    acknowledging that facts merely read-in were substantially correct, as was the
    case in
Tran
, both D.S. and his counsel asserted that D.S. stood
    behind the facts contained in the Agreed Statement of Facts.

[144]

Assuming
    an opportunity for meaningful cross-examination, in my opinion, the trial judge
    erred in law by failing to consider whether the circumstances surrounding the
    preparation and presentation of the Agreed Statement of Facts provided adequate
    substitutes for customary court processes to meet the standard of threshold
    reliability. Moreover, taking account of all the circumstances, I am satisfied
    that the Crown has demonstrated that the trial judges ruling on the
    admissibility of the Agreed Statement of Facts would not necessarily have been
    the same but for the errors in law I have found.

[145]

In
    reaching this conclusion, I recognize that issues of solicitor-client privilege
    could arise at a new trial concerning whether D.S.s counsel properly advised
    D.S. about the consequences of signing the Agreed Statement of Facts and
    whether they were acting on instructions in their communications with the Crown
    and the court. Should that occur, it will be for the trial judge to determine
    whether D.S.s evidence at the new trial amounts to an implied waiver of
    solicitor-client privilege in the circumstances. Although the implied waiver
    issue was not fully argued before us, I will make some brief comments on the
    subject to attempt to provide assistance should the issue arise at the new
    trial.

[146]

An express
    waiver of privilege will occur where the holder of the privilege: (1) knows of
    the existence of the privilege; and (2) voluntarily evinces an intention to
    waive it:
S & K Processors Ltd. v. Campbell Ave. Herring Producers Ltd
.,
    [1983] 4 W.W.R. 762 (B.C.S.C.) per McLachlin J.

[147]

Despite
    these requirements, an implied waiver of solicitor-client privilege may occur
    where fairness requires it and where some form of voluntary conduct by the
    privilege holder supports a finding of an implied or objective intention to
    waive it. Importantly, a limited implied waiver may arise where a client
    alleges a breach of duty by his counsel.

[148]

According
    to
Wigmore on Evidence
, vol. 8, (McNaughton rev. 1961), sec. 2327 pp. 635
     38, in relation to voluntary testimony, waiver can be implied where fairness
    demands it.  One such circumstance arises where a client alleges misconduct on
    the part of his counsel:

§2327 Waiver in general; Voluntary testimony as
    a waiver.

What constitutes a waiver by implication?

Judicial decision gives no clear answer to this
    question. In deciding it, regard must be had to the double elements that are
    predicated in every waiver, i.e., not only the element of implied intention,
    but also the element of fairness and consistency.
A privileged person would
    seldom be found to waive, if his intention not to abandon could alone control
    the situation. There is always also the objective consideration that when his
    conduct touches a certain point of disclosure, fairness requires that his privilege
    will cease whether he intended that result or not
. He cannot be allowed
    after disclosing as much as he pleases, to withhold the remainder. He may elect
    to withhold or to disclose, but after a certain point his election must remain
    final. As a fair canon of decision, the following distinctions may be
    suggested:



(6)
When the client alleges a breach of duty
    to him by the attorney, the privilege is waived as to all communications
    relevant to that issue.
[Emphasis added.]

[149]

However,
    in
S & K Processors Ltd.
, McLachlin J. expressed the view that [i]n
    the cases where fairness has been held to require implied waiver, there is
    always some manifestation of a voluntary intention to waive the privilege at
    least to a limited extent.

[150]

In that
    case, McLachlin J. held that production of an accountants report did not
    constitute waiver of privilege as to communications between the expert, the
    instructing solicitor and the client in the course of preparation of the report
    because the report was produced under compulsion by statute.

[151]

Similarly,
    in
R. v. Campbell
, [1999] 1 S.C.R. 565, Binnie J. noted that the mere
    fact that an RCMP officer confirmed in cross-examination that he obtained the
    opinion of a Department of Justice lawyer to verify his own understanding of
    the legality of a reverse-sting operation was not sufficient to constitute a
    waiver of privilege. The officer was simply responding to questions crafted by
    the appellants, as he was required to do.

[152]

Rather it
    was the officers evidence in-chief, asserting his belief in the legality of
    the reverse sting operation, and the reliance by the RCMP and the Crown on the
    legal opinion as a factor weighing against the imposition of a stay, that gave
    rise to an implied waiver of solicitor-client privilege.

[153]

Nonetheless,
    implied waiver has been found to occur in situations where a party brings the
    suit or raises an affirmative defence that makes his intent and knowledge of
    the law relevant
[4]
and in a case where a co-accused in a criminal trial testified that his counsel
    had suggested that he lie to facilitate a plea bargain.
[5]

[154]

We, of
    course, have no way of knowing how the evidence will unfold at a new trial. And
    we recognize that issues of implied waiver involve fact specific
    determinations.

[155]

Thus, in
    my opinion, the mere fact that D.S. claimed, in his evidence in the court
    below, that he did not understand some of the words in the Agreed Statement of
    Facts and that he did not understand the words acknowledges and accurate
    that were put to him by his counsel at the guilty plea proceeding could not
    amount to an implied waiver of solicitor-client privilege. It was never made
    clear what other words he did not understand and he did not claim to have
    discussed those particular words with his counsel. Moreover, he was not asked about
    the instructions he gave his counsel concerning communications to be made in
    court.

[156]

However,
    if it should happen that D.S. testifies at the new trial in a manner that
    alleges misconduct on the part of his counsel at the guilty plea proceeding, in
    my opinion, a strong argument would arise that he had impliedly waived
    solicitor-client privilege to the extent necessary to permit his counsel to
    offer an explanation.

[157]

I
    recognize that D.S. will be testifying under subpoena and that the type of
    testimony I have referred to may arise during cross-examination  factors that
    could potentially go to the voluntariness of his testimony:
R. v. Creswell
,
    2000 BCCA 583;
R. v. Chan
. I also recognize that
    solicitor-client-privilege must be as close to absolute as possible and that
    it will only yield in certain clearly defined circumstances:
R. v. McClure
, [2011] 1 S.C.R. 445 at
    para. 35
.

[158]

Nonetheless,
    it will be for the trial judge at the new trial, with the benefit of fulsome
    submissions from counsel, to resolve questions concerning implied waiver of
    solicitor-client privilege, should they arise, having regard to the specifics
    of D.S.s testimony. As I have said, this will involve a fact specific
    determination that may include an assessment of issues such as the reasonable
    inferences arising from D.S.s testimony and whether particular evidence was
    voluntary or compelled even if given under cross-examination.

(iii) Did the trial judge err by
    treating motive to fabricate as going to threshold, rather than ultimate
    reliability?

[159]

Near the
    end of the analysis section of his reasons for refusing to admit the Agreed
    Statement of Facts for the truth of its content, the trial judge stated that while
    no direct evidence of a motive to lie had been presented he could infer such a
    motive in the circumstances.

[160]

The Crown
    submits that because D.S. was available for meaningful cross-examination, motive
    to lie went to ultimate, rather than threshold, reliability of the Agreed
    Statement of Facts. Accordingly, the Crown contends that the trial judge erred
    in considering the presence of a motive to lie as part of the admissibility
    inquiry.

[161]

In my
    view, this is a question for the trial judge at the new trial to determine
    based on the trial judges view of whether the threshold reliability
    requirement has been satisfied based on D.S.s availability for
    cross-examination and the process that was followed in putting the Agreed
    Statement of Fact before the court when D.S. pled guilty.

[162]

Khelawon
makes it clear that the question of whether particular factors go to threshold
    or ultimate reliability depends on the particular dangers arising from the
    hearsay nature of the statement and the available means, if any, of overcoming
    them:
Khelawon
at para. 55.

[163]

If the
    trial judge at the new trial is satisfied that the [threshold] reliability
    requirement is met on the basis that the trier of fact has a sufficient basis
    to assess the  truth and accuracy [of the Agreed Statement of Facts] based on
    D.S.s availability for cross-examination and the process that was followed in
    putting the Agreed Statement of Facts before the court, there is no need to inquire
    further into the likely truth of the [Agreed Statement of Facts].

[164]

On the
    other hand, if the trial judge concludes that threshold reliability is
    dependent on the inherent trustworthiness of the statement, the trial judge
    must inquire into those factors tending to show that the statement is true or
    not:
Khelawon
at para. 92.


VI.      Disposition

[165]

Based on
    the foregoing reasons, I would allow the appeal, set aside the respondents
    acquittal and order a new trial.

Signed:           Janet Simmons
    J.A.

I agree
    W. Winkler C.J.O.

I agree
    M. J. Moldaver J.A.

RELEASED:  WW OCTOBER 20, 2011





[1]

During oral submissions, Crown counsel on the appeal indicated
    he was not pressing an alternate ground of appeal raised in his factum
    concerning whether the trial judge erred in directing a verdict of acquittal.



[2]

Defence counsels concession was premised on the fact that
    D.S. identified his signature on the document as well as the fact that he
    anticipated that the Crown would be able to obtain a transcript of D.S.s
    guilty plea proceeding at which the Agreed Statement of Fact was entered. Prior
    to the formal s. 9(2) ruling, Crown counsel in fact obtained the transcript.



[3]
Lamer C.J.C.s comment was made in the context of statements by non-accused
    witnesses to the police. However, I see no reason why the same consequences
    would not apply to statements implicating another individual in an offence
    contained in an Agreed Statement of Fact signed by an accused person to support
    a guilty plea to a reduced charge, where such statements are patently within
    the knowledge of the accused person.



[4]

Rogers v. Bank of Montreal
,
    [1985] 4 W.W.R. 508 (B.C.C.A.) at p. 513, citing
United States v. Exxon Corp.
,
    94 F.R.D. 246 (1981) at pp. 248-49.



[5]

R. v. Dunbar
(1982), 68 C.C.C.
    (2d) 13 (Ont. C.A.) at para.
67 citing
Wigmore on Evidence
, vol.
    8, (McNaughton rev. 1961) at p. 638. I note, however, that
Dunbar
has
    been questioned. See
R. v. Chan
, [2002] A.J. No. 1019 (Q.B.).


