Reliable Co-Accused

Jeffrey Woodman was out shoplifting with a group of friends.  They left the scene of their crime in a car. When a police officer approached the vehicle, the car accelerated towards the officer, struck him and sped off.   The officer sustained serious injuries. The principal issue at trial was the identity of the driver at the time the officer was struck. Woodman was convicted by a jury of his peers; the Ontario Court of Appeal dismissed his appeal of both conviction and sentence: 2016 ONCA 63. 

Woodman testified at trial. He admitted to shoplifting with his friends. He admitted to that he got into the driver’s seat and that he was the one who was driving when the car fled from police. However, Woodman maintained that that he was not driving the car when it struck the officer. 

The officer could not identify the driver and of the males in the vehicle only one came forward and offered information about who was driving the vehicle. 

At 3am a few hours after the officer was struck, Stinson provided a video recorded statement to police.  Stinson identified Woodman as the driver of the vehicle. The statement was unsworn. When called upon to testify at trial Stinson claimed to have no recollection of the events because he was under the influence of heroin. 

The trial judge admitted Stinson’s statement to police for the truth of it’s contents. Woodman argued on appeal that this was an error worthy of granting Woodman a new trial. The ONCA disagreed. 

The Court held “the trial judge properly exercised his role as gatekeeper in admitting Mr Stinson’s statement that met the twin threshold requirements of necessity and reliability: R v Youvarajah, 2013 SCC 41 at para 21.”

First, the Court found that the necessity criterion was made out on the basis of Stinson either failure or refusing to adopt his prior statement [para 8].

Second, the trial judge did not err in finding that threshold reliability criterion was met based on the following factors: 

  • The statement was given to police within hours of the incident
  • The statement was video recorded
  • Stinson’s demeanour and credibility at the time the statement was given could be assessed by the trier of fact 
  • Stinson appeared to be coherent, responsive to questions and not under the influence of drugs or alcohol
  • The declarant was available for cross-examination 
  • Several aspects of the statement were corroborated and/or confirmed by other evidentiary sources including the injured officer and video surveillance from the store where the group was shoplifting [para 9]

Woodman argued that the Supreme Court’s relatively recent decision in Youvarajah was determinative of this appeal. In Youvarajah the trial judge declined to admit a recanting co-accused’s statement notwithstanding the fact that the co-accused was available for cross-examination. Woodman emphasized that Stinson had a powerful motive to lie: saving his own hide and thus his statement to police should not have been admitted. 

The Ontario Court of Appeal distinguished Youvarajah from the circumstances in Woodman explaining that: 

(…) in our view, the circumstances of R. v. Youvarajah are distinguishable from the case at bar. In R. v. Youvarajah, the Court noted the absence of the following indicia of reliability that are present in the case at bar: the statement in issue was an agreed statement of facts prepared by the co-accused’s lawyer rather than the witness’ own spontaneous words, for use at his own separate youth trial as part of a plea agreement; the co-accused testified that he did not understand everything that he read in the statement; the statement was not videotaped so that there was no opportunity to assess the co-accused’s demeanour or credibility; and the co-accused not only recanted his previous statement but admitted at the appellant’s trial the acts in which he had implicated the appellant in his previous statement.  Most important, cross-examination of the co-accused would be effectively precluded by his invocation of solicitor-client privilege. None of these factors features in the present case [para 11].

Finally the Court noted that in addition to having properly exercised his gatekeeping function with respect to the admissibility of the statement, the trial judge also properly instructed the jury on how they were to evaluate the statement [para 13].

Woodman was sentenced to 4years and 8months in prison after having been credited with 1 year and 4 months pre-sentence custody. The Court dismissed his sentence appeal. 

LT

Current & Curious: The truth driven by circumstances?

Yousanthan Youvarajah and DS were involved in the killing of another man after a failed drug deal. DS pleaded guilty to second-degree murder. As part of the plea agreement he signed an agreed statement of facts. In that statement he implicated Youvarajah as the one who provided the handgun to him, directed him to shoot the victim and demanded the gun back [para 7]. When he pleaded he acknowledged the accuracy of this statement of facts.

 

At Youvarajah’s trial DS was called by the Crown as a witness. DS was asked to adopt the agreed statement of facts. Shockingly, he testified that he did not remember signing the document (although he accepted it bore his signature). Further, he testified that the statement was not true. He indicated, instead, that the gun was his own and that he threw the gun into the river after the shooting. Regarding his plea, he indicated that he “did not understand the words ‘acknowledged’ or ‘accurate’ as used by his counsel” and that one of the reasons he pleaded guilty was that he was told he would not have to give any further statement [para 9].

The Crown sought to tender the statement under the principles of KGB. The trial judge denied the Crown’s application on the basis it did not meet threshold reliability. Karakatsanis J outlined the trial judge’s reasons as follows:

None of the safeguards identified in this Court’s decision in R. v. B. (K.G.), [1993] 1 S.C.R. 740 (K.G.B.), for reducing the dangers associated with hearsay had been undertaken.  The statement was not videotaped; there had been no recital of an oath or affirmation; and the transcript of the guilty plea proceedings was not a suitable substitute to assess D.S.’s demeanour and credibility at the time the statement was made.  Furthermore, the statement had been drafted by counsel; it was not offered spontaneously and was not in D.S.’s own words [para 12].

 

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New & Notable: Express v Implied Hearsay - does it make a difference?

Baldree is a fascinating and important case that resolves an ongoing debate in the law of evidence: Are implied assertions of a factual proposition circumstantial evidence or is it part of the “contents” of a statement for the purposes of the hearsay rule? This debate has significant practical implications for if it is characterized as hearsay, the evidence is presumptively inadmissible: 2013 SCC 35.

 

The Facts

Cornwall police attended in response to a suspected break-in at an apartment. It belonged to a certain Eric Lepage but the police were greeted at the door by Eric Baldree who allowed them to come in. Upon entering, the officers immediately detected the odour of marijuana and discovered marijuana joints and marijuana buds in an ashtray. In the closet of a spare bedroom, they discovered an open safe containing a sandwich bag containing 90 grams of cocaine and, beside the safe, another bag containing 511 grams of marijuana.

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