R. v. Youvarajah

R. v. Youvarajah
Collection
Supreme Court Judgments
Date
2013-07-25
Neutral citation
2013 SCC 41
Report
[2013] 2 SCR 720
Case number
34732
Judges
McLachlin, Beverley; Fish, Morris J.; Abella, Rosalie Silberman; Rothstein, Marshall; Cromwell, Thomas Albert; Karakatsanis, Andromache; Wagner, Richard
On appeal from
Ontario
Subjects
Criminal law
Notes
SCC Case Information: 34732
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720
Date: 20130725
Docket: 34732
Between:
Yousanthan Youvarajah
Appellant
and
Her Majesty The Queen
Respondent
- and -
Criminal Lawyers’ Association
Intervener
Coram: McLachlin C.J. and Fish, Abella, Rothstein, Cromwell, Karakatsanis and Wagner JJ.
Reasons for Judgment:
(paras. 1 to 72)
Dissenting Reasons:
(paras. 73 to 153):
Karakatsanis J. (McLachlin C.J. and Fish, Abella and Cromwell JJ. concurring)
Wagner J. (Rothstein J. concurring)
R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720
Yousanthan Youvarajah Appellant
v.
Her Majesty The Queen Respondent
and
Criminal Lawyers’ Association Intervener
Indexed as: R. v. Youvarajah
2013 SCC 41
File No.: 34732.
2013: February 20; 2013: July 25.
Present: McLachlin C.J. and Fish, Abella, Rothstein, Cromwell, Karakatsanis and Wagner JJ.
on appeal from the court of appeal for ontario
Criminal law — Evidence — Admissibility — Hearsay — Murder trial — Co-accused witness recanting previous statement implicating accused in murder — Trial judge finding prior inconsistent statement not meeting threshold reliability test — Whether prior inconsistent statement was sufficiently reliable to be considered by jury for truth of its contents.
The accused, Y, and D.S., the co-accused shooter, were charged with first degree murder after a failed drug deal. D.S. was tried separately as a young offender. He pleaded guilty to second degree murder. As part of his plea agreement, D.S. signed a written Agreed Statement of Facts (ASF) drafted by Crown counsel, with input from defence counsel. The ASF directly implicated Y in the murder. At the time of his plea, D.S. acknowledged the accuracy of the ASF. The ASF was neither videotaped nor preceded by sworn oath or affirmation.
During Y’s trial, the Crown asked D.S. to adopt the ASF. D.S. testified that he could not remember signing the document, but acknowledged that it bore his signature. D.S. further denied the facts in the ASF implicating Y. In response to D.S.’s denials, the Crown sought to adduce the ASF for the truth of its contents. Following a voir dire, the trial judge found insufficient means for the jury to assess the reliability of the ASF as a prior inconsistent statement and ruled the signed ASF did not meet the threshold reliability required for it to be admissible as evidence for the truth of its contents. When D.S. asserted solicitor-client privilege, the ability to cross-examine was curtailed and the trial judge found the opportunity for an effective cross-examination at trial was to a large extent illusory. The trial judge granted the defence’s application for a directed order acquitting Y. The Court of Appeal allowed the appeal, set aside the acquittal and ordered a new trial.
Held (Rothstein and Wagner JJ. dissenting): The appeal should be allowed and the acquittal restored.
Per McLachlin C.J. and Fish, Abella, Cromwell and Karakatsanis JJ.: A prior inconsistent statement of a non-accused witness may be admitted for the truth of its contents if the following reliability indicia are met: (1) the statement is made under oath or solemn affirmation after a warning as to possible sanctions if the person is untruthful; (2) the statement is videotaped or recorded in its entirety; and (3) the opposing party has a full opportunity to cross-examine the witness on the statement. The prior inconsistent statement’s threshold reliability may also be established by: (1) the presence of adequate substitutes for testing truth and accuracy (procedural reliability); and (2) sufficient circumstantial guarantees of reliability or an inherent trustworthiness (substantive reliability). A trial judge is well-placed to assess the hearsay dangers in a particular case and the effectiveness of any safeguards to assist in overcoming them. Thus, absent an error in principle, the trial judge’s determination of threshold reliability is entitled to deference.
In this case, the trial judge did not err in finding that there were insufficient safeguards to establish threshold reliability to admit the ASF as evidence for the truth of its contents. Only a full and complete opportunity to cross-examine would have provided a genuine basis on which to assess the reliability of D.S.’s statements. D.S.’s invocation of solicitor-client privilege, however, curtailed significantly the cross-examination available to assess the threshold reliability of the prior inconsistent statement. The Crown could not have probed the conversations between D.S. and his counsel about legal advice in connection with his decision to plead guilty or to accept the ASF. The trial judge may have overstated the scope of solicitor-client privilege and its consequences for the cross-examination of D.S.; however, any overstatement would not have had a material impact on the conclusion that cross-examination was not, in this case, a sufficient means to satisfy threshold reliability.
The Crown cannot ask for a new trial on the basis that the prosecution should have been conducted differently. The trial judge did not preclude the Crown from conducting a more probing cross-examination of the witness or from calling other witnesses about the creation of the ASF. The trial judge made no comments suggesting that there should be no further cross-examination of the witness on the voir dire. The judge was not asked for a ruling on this issue. Had Crown counsel wished to call further evidence, he could have sought direction. Since this was the same Crown counsel who had prosecuted D.S. at his separate youth trial, and who negotiated the plea bargain and drafted the ASF, he knew what D.S. or his lawyers could say about those matters, outside the scope of solicitor-client privilege.
The trial judge did not err in finding that the circumstances surrounding the making of the prior inconsistent statement did not provide sufficient guarantees of substantive reliability. The circumstantial guarantees of trustworthiness asserted by the Crown — the thorough process in creating the ASF, the involvement of counsel, and the solemnity of the guilty plea proceeding — do not establish threshold reliability for the statements from which D.S. recanted, which served to minimize his involvement in the murder and shift responsibility to Y. In the circumstances of this case, the formality of the process and the involvement of counsel only provide comfort in respect of D.S.’s statements admitting his own culpability for the murder. The administration of justice would not be enhanced in permitting admissions made by a co-accused in his own interest, as part of a plea bargain for a conviction of a lesser crime and favourable sentence, to be used against a co-accused, in circumstances where the reliability of the statements cannot be adequately tested.
Per Rothstein and Wagner JJ. (dissenting): Threshold reliability should be generously interpreted in the admissibility inquiry. As a general rule, if a statement is accepted for its truth by the courts, and used to balance the liberty interests of the accused with societal considerations such as deterrence and retribution, then that statement provides a level of implicit reliability that warrants consideration in the admissibility inquiry in a subsequent third-party trial. That is not to say that a statement’s use and judicial acceptance at a prior proceeding is sufficient in and of itself to meet the reliability requirement of the principled approach. Rather, it is merely a factor that must be considered in the admissibility inquiry, a factor that goes towards meeting the threshold reliability standard. Each case will have to be examined on its particular circumstances when determining threshold reliability, but consideration should certainly be given to the general acceptance of and reliance on statements read in as part of a guilty plea. Limits on cross-examination should not be applied rigidly and absolutely where solicitor-client privilege is asserted. Rather, issues of privilege should be addressed as they arise on cross-examination. This way, relevant information that may not be prohibited by the assertion of privilege may still be elicited, furthering the underlying truth-seeking function of the proceedings.
The question of admissibility in this case must be redetermined in a new trial where threshold reliability can be properly assessed. The trial judge erred in his determination that the ASF did not meet the standard of threshold reliability. He failed to adequately assess the available indicia of reliability and erroneously found the opportunity to cross-examine D.S. to be illusory. That is not to say that the circumstances in this case provide sufficient evidence to conclusively determine that the ASF should be admitted. Rather, the admissibility inquiry was incomplete and did not provide a proper basis for the trial judge to exclude the relevant evidence. The opportunity to cross-examine D.S. was not entirely closed and the trial judge misapprehended the scope and impact of solicitor-client privilege on the opportunity for cross-examination. Had the trial judge permitted the cross-examination to proceed and addressed issues involving solicitor-client privilege as they arose, information sufficient to meet the threshold reliability standard may have been brought forward. D.S. was available for cross-examination, he recalled having made many of the statements within the ASF, he did not dispute understanding the key facts in the ASF which he subsequently denied at Y’s trial, and he recalled the ASF being read in at his guilty plea proceeding.
Other factors were available in this case that could have satisfied the trial judge that the circumstances surrounding the drafting and reading in of the ASF provided assurances of reliability equivalent to an oath and presence. If these indicia had been considered and cross-examination had been permitted, it is possible that threshold reliability would have been met. Perhaps the most persuasive indicia of reliability are the nature of the statement and how it was constructed. The ASF tendered as evidence in D.S.’s guilty plea proceeding provides just such a record. Having been reduced to writing, signed not only by D.S. but by both Crown and defence counsel, and having been read in to the record in the context of D.S.’s guilty plea, the source of the document cannot be disputed. This was not a statement that was unilaterally drafted and forced upon D.S. to adopt. Rather, the drafting of the ASF was a collaborative effort where there is evidence that at least one crucial component to the Crown’s case against Y was supplied by defence counsel — namely the statement that Y supplied D.S. with the gun. Moreover, D.S. had the opportunity to review the ASF with his counsel prior to signing it and adopting it. This is an important aspect as it refutes any negative inferences that could be drawn against the ASF on the grounds that it was not captured in D.S.’s own words or that D.S. did not understand its contents. Perhaps most importantly, D.S. testified that he understood the three crucial components of the ASF, namely that Y gave D.S. the gun, Y told D.S. to shoot the victim, and demanded that D.S. return the gun. Without more persuasive evidence to the contrary, this essentially forecloses any argument that D.S. lacked understanding of the ASF’s contents. Looking beyond the construction of the ASF, the context of the proceedings under which it was read in to court and the contents of the ASF itself provide additional indicia supporting threshold reliability.
Cases Cited
By Karakatsanis J.
Referred to: R. v. B. (K.G.), [1993] 1 S.C.R. 740; R. v. Conway (1997), 36 O.R. (3d) 579; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787; R. v. Khan, [1990] 2 S.C.R. 531; R. v. Smith, [1992] 2 S.C.R. 915; R. v. U. (F.J.), [1995] 3 S.C.R. 764; R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298; R. v. Hawkins, [1996] 3 S.C.R. 1043; R. v. Devine, 2008 SCC 36, [2008] 2 S.C.R. 283; R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517; R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609; R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411; R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104; R. v. Brooks, 2000 SCC 11, [2000] 1 S.C.R. 237.
By Wagner J. (dissenting)
R. v. B. (K.G.), [1993] 1 S.C.R. 740; R. v. Conway (1997), 36 O.R. (3d) 579; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787; R. v. U. (F.J.), [1995] 3 S.C.R. 764; R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517; R. v. Trieu (2005), 195 C.C.C. (3d) 373; R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298; R. v. Hawkins, [1996] 3 S.C.R. 1043; R. v. Tran, 2010 ONCA 471, 103 O.R. (3d) 131; R. v. D.P., 2010 ONCA 563, 268 O.A.C. 118; R. v. McGee, 2009 CanLII 60789; R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445; R. v. S.G.T., 2010 SCC 20, [2010] 1 S.C.R. 688.
Authors Cited
Paciocco, David M., and Lee Stuesser. The Law of Evidence, 6th ed. Toronto: Irwin Law, 2011.
Proulx, Michel, and David Layton. Ethics and Canadian Criminal Law. Toronto: Irwin Law, 2001.
Wigmore, John Henry. Evidence in Trials at Common Law, vol. 8. Revised by John T. McNaughton. Boston, Mass.: Little, Brown, 1961.
APPEAL from a judgment of the Ontario Court of Appeal (Winkler C.J.O. and Moldaver and Simmons JJ.A.), 2011 ONCA 654, 107 O.R. (3d) 401, 284 O.A.C. 300, 278 C.C.C. (3d) 102, 90 C.R. (6th) 184, [2011] O.J. No. 4610 (QL), 2011 CarswellOnt 11167, setting aside the accused’s acquittal entered by Flynn J. on March 17, 2010, and ordering a new trial. Appeal allowed and acquittal restored, Rothstein and Wagner JJ. dissenting.
Philip R. Campbell and Jonathan Dawe, for the appellant.
James K. Stewart and Nadia Thomas, for the respondent.
Marie Henein and Matthew Gourlay, for the intervener.
The judgment of McLachlin C.J. and Fish, Abella, Cromwell and Karakatsanis JJ. was delivered by
Karakatsanis J. —
I. Introduction
[1] The issue in this appeal is whether a co-accused’s prior inconsistent statement, implicating the appellant in a murder, was sufficiently reliable to be considered by a jury for the truth of its contents.
[2] The Crown’s theory was that the appellant planned the murder and provided the murder weapon to the co-accused shooter. The shooter, in a separate proceeding in youth court, pleaded guilty to second degree murder. In doing so, he adopted a written Agreed Statement of Facts (ASF) in which he shifted responsibility for planning the murder and for obtaining the murder weapon to the appellant.
[3] As a witness in the appellant’s murder trial, the shooter resiled from those facts inculpating the appellant and refused to adopt the prior statement. The Crown’s case against the appellant collapsed when the trial judge found that the ASF did not meet the threshold reliability required to be admitted for the truth of its contents.
[4] The question before us is whether the trial judge erred in finding that the ASF did not meet threshold reliability to be put before the jury.
[5] The Court of Appeal concluded that the trial judge erred. However, for the reasons that follow, I would allow the appeal and reinstate the acquittal.
II. Background
[6] Yousanthan Youvarajah, the appellant, and D.S., a minor, were charged with first degree murder after a failed drug deal. On the Crown’s theory, Youvarajah planned the murder and provided the murder weapon for D.S. to shoot the victim.
[7] D.S. was tried separately as a young offender. He pleaded guilty to second degree murder and was sentenced as a youth. As part of his plea agreement, D.S. signed the ASF drafted by Crown counsel, with input from defence counsel. In it, D.S. directly implicated the appellant in the murder: the appellant gave D.S. the handgun that was used in the shooting; he ordered D.S. to shoot the victim; and he demanded the return of the handgun after the shooting.
[8] At the time of his plea, D.S. acknowledged the accuracy of the ASF. At the appellant’s trial, he testified that he did not understand the words “acknowledged” or “accurate” as used by his counsel at the guilty plea proceedings.
[9] The ASF was neither videotaped nor preceded by sworn oath or affirmation. D.S. was told that, for endorsing the agreed statement, no further statement regarding the murder would be required from him. During his testimony at the appellant’s trial, he said that was one of the reasons that motivated him to plead guilty.
[10] During examination-in-chief, the Crown asked D.S. to adopt the ASF. D.S. testified that he could not remember signing the document, but acknowledged that it bore his signature. D.S. further denied the facts in the statement implicating the appellant. Instead, D.S. testified that the gun was his own; he shot the victim because of the way he was talking; and he threw the gun into the river after the shooting.
[11] In response to D.S.’s denials, the Crown sought to adduce the ASF for the truth of its contents. The trial judge rejected the Crown’s application. At the close of the Crown’s case, the trial judge granted the defence’s application for a directed order acquitting the appellant.
III. Decisions Below
[12] Following a voir dire, Flynn J. ruled that the signed ASF — hearsay evidence by virtue of being an out-of-court statement adduced for the truth of its contents — did not meet the threshold reliability required for it to be admissible as evidence. 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.
[13] Referring to R. v. Conway (1997), 36 O.R. (3d) 579 (C.A.), Flynn J. noted that the opportunity for an effective cross-examination at trial would be “to a large extent illusory” where the declarant experiences significant memory lapses or where he recants (A.R., vol. I, at p. 61). D.S.’s refusal to waive solicitor-client privilege precluded questions to D.S. or his counsel about how D.S. came to implicate the appellant (A.R., vol. I, at p. 59).
[14] Flynn J. found insufficient means for the jury to assess the reliability of the ASF as a prior inconsistent statement and held that it was not admissible as evidence for the truth of its contents.
[15] The Ontario Court of Appeal concluded that the trial judge erred in his understanding of the scope of solicitor-client privilege. Solicitor-client privilege would not have precluded all questioning of D.S. or his counsel regarding the ASF or his choice to implicate the appellant. The Court of Appeal also held that the trial judge further erred in strictly focussing on the K.G.B. requirements for establishing reliability and in failing to consider other factors, such as the solemnity of the occasion upon which D.S. adopted the ASF and the involvement of counsel in preparing it.
[16] Satisfied that without such errors the trial judge might have admitted the ASF into evidence, the Ontario Court of Appeal allowed the appeal, set aside the acquittal, and ordered a new trial.
IV. Issues
[17] The question in this appeal is whether the trial judge erred in finding that there were insufficient safeguards to establish threshold reliability to admit the ASF as evidence and, if he did, whether the error had a material bearing on the result. Answering this question requires the consideration of two issues:
(a) Did the trial judge err in finding that cross-examination did not provide a sufficient basis for the jury to assess the truthfulness of the prior inconsistent statement?
(b) Did the trial judge err in finding that the circumstances surrounding the making of the prior inconsistent statement did not provide sufficient guarantees of substantive reliability?
V. Legal Principles
A. Hearsay and Threshold Reliability
[18] Hearsay evidence — an out-of-court statement tendered for the truth of its contents — is presumptively inadmissible. This is because the dangers associated with hearsay evidence may undermine the truth-seeking function of a trial or its fairness. These dangers typically include an inability to test and assess a declarant’s perception, memory, narration, or sincerity: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 2.
[19] The law has conventionally favoured the evidence of witnesses who give evidence in court because they can be observed, under oath or affirmation, and their credibility and reliability can be tested by cross-examination. These elements help the trier of fact assess the credibility of the declarant or witness, the reliability of the evidence, and the degree of probative force it carries. When these elements are absent, as is the case with a statement made outside of the court, it is more difficult for the trier of fact to make these assessments.
[20] Over time, however, the law has recognized that in certain circumstances, it may be safe to rely on out-of-court statements for the truth of their contents. Exceptions to the hearsay rule developed for statements carrying certain guarantees of inherent trustworthiness, often because of the circumstances in which they were made (for example, dying declarations and declarations that are adverse in interest).
[21] In addition to the traditional exceptions, however, this Court developed a principled approach that permits trial judges to admit hearsay evidence if it meets the twin threshold requirements of necessity and reliability. This is a flexible case-by-case examination. See especially R. v. Khan, [1990] 2 S.C.R. 531; R. v. Smith, [1992] 2 S.C.R. 915; K.G.B.; R. v. U. (F.J.), [1995] 3 S.C.R. 764; and R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 38. With the increased flexibility provided by the principled approach, however, the gatekeeper function of the trial judge becomes more complex and nuanced.
[22] Where a witness recants from a prior statement, necessity is established: Khelawon, at para. 78. The focus in this case is on whether the prior inconsistent statement meets threshold reliability.
[23] The trial judge, as the evidentiary gatekeeper, assesses the threshold reliability of the hearsay statement. The decision as to the ultimate reliability of the statement is left to the trier of fact: Khelawon, at para. 2. Even if the necessity and reliability of the hearsay evidence are proven, the trial judge maintains discretion to exclude the evidence where the “prejudicial effect is out of proportion to its probative value”: Khelawon, at para. 3.
[24] Why not simply let the trier of fact determine both threshold and ultimate reliability? Professors D. M. Paciocco and L. Stuesser provide the following explanation, with which I agree:
In considering “reliability”, a distinction is made between “threshold” and “ultimate” reliability. This distinction reflects the important difference between admission and reliance. Threshold reliability is for the trial judge and concerns the admissibility of the statement. The trial judge acts as a gatekeeper whose function “is limited to determining whether the particular hearsay statement exhibits sufficient indicia of reliability so as to afford the trier of fact a satisfactory basis for evaluating the truth of the statement.” So long as it can be assessed and accepted by a reasonable trier of fact, then the evidence should be admitted. Once admitted, the jury remains the ultimate arbiter of what to do with the evidence and deciding whether or not the statement is true.
(The Law of Evidence (6th ed. 2011), at pp. 122-23)
See R. v. Hawkins, [1996] 3 S.C.R. 1043, at para. 75; and Khelawon, at paras. 50-52.
[25] Threshold reliability serves an important function. Rules of evidence and principles governing the admissibility of evidence exist in the first place because experience teaches that certain types of evidence can be presumptively unreliable (or prejudicial) and can undermine the truth-seeking function of a trial. Rules of admissibility of evidence address trial fairness and provide predictability. They also provide the means to maintain control over the scope of criminal trials to keep them manageable and focussed on probative and relevant evidence.
B. Admissibility of Prior Inconsistent Statements
[26] Historically, an out-of-court prior inconsistent statement of a non-accused witness was admissible only to impeach the credibility of the witness. A prior inconsistent statement — hearsay evidence — was not admissible for the truth of its contents unless the witness adopted the prior statement in court. Otherwise, the jury was limited to rejecting the viva voce evidence of the recanting witness; the jury could not substitute the contents of the out-of-court statement.
[27] This traditional rule excluding prior inconsistent statements was altered in K.G.B. to conform with the evolving principled approach to hearsay. On an exceptional basis, a prior inconsistent statement is admissible for the truth of its contents, provided the threshold criteria of necessity and reliability are established.
[28] In K.G.B., at p. 787, Lamer C.J. stated that the focus of the reliability inquiry, when dealing with prior inconsistent statements, “is on the comparative reliability of the prior statement and the testimony offered at trial, and so additional indicia and guarantees of reliability . . . must be secured in order to bring the prior statement to a comparable standard of reliability before such statements are admitted as substantive evidence”.
[29] Accordingly, Lamer C.J. held, at pp. 795-96, that a prior inconsistent statement of a non-accused witness may be admitted for the truth of its contents if the so-called K.G.B. reliability indicia are met: (1) the statement is made under oath or solemn affirmation after a warning as to possible sanctions if the person is untruthful; (2) the statement is videotaped or recorded in its entirety; and (3) the opposing party has a full opportunity to cross-examine the witness on the statement. Such K.G.B. statements have become prevalent, especially in murder investigations.
[30] However, the K.G.B. indicia are not the only means of establishing threshold reliability. The prior inconsistent statement’s threshold reliability may be established by: (1) the presence of adequate substitutes for testing truth and accuracy (procedural reliability); and (2) sufficient circumstantial guarantees of reliability or an inherent trustworthiness (substantive reliability): Khelawon, at paras. 61-63. These two principal ways of showing threshold reliability are not mutually exclusive: R. v. Devine, 2008 SCC 36, [2008] 2 S.C.R. 283, at para. 22.
[31] The admissibility of hearsay evidence, such as the prior inconsistent statement in this case, is a question of law. Of course, the factual findings that go into that determination are entitled to deference and are not challenged in this case. As well, a trial judge is well placed to assess the hearsay dangers in a particular case and the effectiveness of any safeguards to assist in overcoming them. Thus, absent an error in principle, the trial judge’s determination of threshold reliability is entitled to deference: R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, at para. 81.
[32] To obtain a new trial following an acquittal, the Crown must show that the trial judge erred and that this error “might reasonably be thought . . . to have had a material bearing on the acquittal”: R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, at para. 14. The Crown is not required to establish “that the verdict would necessarily have been different”: Graveline, at para. 14. This is still, however, a “heavy onus” for the Crown: R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at para. 26.
VI. Application
[33] In light of the trial judge’s obligation to act as evidentiary gatekeeper, I turn first to the specific hearsay dangers posed by the prior inconsistent statement in this case as noted by the trial judge. In the context of the plea bargain, D.S. had a strong incentive to minimize his role in the crime and to shift responsibility to the appellant, a co-accused, in order to obtain a favourable outcome. There was no opportunity to observe the demeanour of D.S. or his own choice of words, as the ASF was drafted by counsel and was not spontaneous. When D.S. asserted solicitor-client privilege, the ability to cross-examine was curtailed.
[34] The trial judge therefore considered whether cross-examination of D.S. at the appellant’s trial would provide an adequate procedural basis to permit the jury to assess the veracity of the prior statement and whether there were other circumstances that provided circumstantial assurances of trustworthiness.
A. Procedural Substitutes: The Opportunity to Cross-Examine the Recanting Witness
[35] The most important factor supporting the admissibility of a prior inconsistent statement of a non-accused witness for the truth of its contents is the availability of the non-accused witness for cross-examination. In Couture, Charron J. held that “the availability of the declarant for cross-examination goes a long way to satisfying the requirement for adequate substitutes” for testing the evidence (at para. 92) and that “the opportunity to cross-examine is the most powerful factor favouring admissibility” (para. 95).
[36] In assessing the means by which a jury could rationally evaluate the truthfulness and accuracy of the statement, the trial judge correctly noted the importance of cross-examination. He stated that it was an important means for the jury to determine whether a previous statement from a witness was ultimately reliable. However, referring to Conway, the trial judge noted that the opportunity for an effective cross-examination of D.S. at the appellant’s trial would be “to a large extent illusory” due to D.S.’s memory lapses with respect to the ASF and his invocation of solicitor-client privilege.
[37] With respect to solicitor-client privilege, the trial judge concluded:
Solicitor/client privilege precluded questions to or from [D.S.] or indeed of his counsel about how it came to be that this confession 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 Yousanthan Youvarajah in all that time. [A.R., vol. I, at p. 59]
[38] The respondent agrees with the Ontario Court of Appeal that the trial judge erred in overstating the scope of solicitor-client privilege and failed to recognize that there would be significant areas of cross-examination open to counsel at trial. The Court of Appeal found that the trial judge erred in relying on Conway to conclude that cross-examination of D.S. would be “to a large extent illusory”. As a result, the court concluded that the trial judge may have admitted the ASF if he had appreciated the broader scope of cross-examination available to test its reliability.
[39] The Court of Appeal concluded that both counsel and the trial judge appeared “to have been of the mistaken view” that solicitor-client privilege would preclude certain questions being asked of D.S. with respect to the ASF (2011 ONCA 654, 107 O.R. (3d) 401, at para. 93). Further, at para. 95, the Court of Appeal cited the trial judge’s statement that “no legal witnesses that have [ever] spoken to [D.S.]” should be called (A.R., vol. II, at p. 132).
B. Solicitor-Client Privilege
[40] On a strict reading of the passage quoted above, I agree that the trial judge overstated the scope of solicitor-client privilege. It would have been more accurate for the trial judge to say that it precluded many questions about his decision to accept the plea bargain and his reasons for implicating the appellant. Simmons J.A., for the unanimous panel of the Court of Appeal, outlined a number of areas of questioning that remained available to the Crown (see para. 84).
[41] However, for the reasons that follow, on my reading of the reasons and the voir dire record, I am not persuaded that the trial judge erred in concluding that cross-examination was “to a large extent illusory” and insufficient to overcome the hearsay dangers in this particular case. Further, I do not agree that the trial judge precluded the Crown from conducting a more probing cross-examination of the witness or from calling other witnesses about the creation of the ASF. Finally, I am not persuaded that any overstatement of the scope of solicitor-client privilege would have had a material impact on the conclusion that cross-examination was not, in this case, a sufficient means to satisfy threshold reliability.
[42] Once D.S. confirmed that he would not waive solicitor-client privilege, the Crown chose to circumscribe its cross-examination and had no further questions of the witness. The trial judge made no comments suggesting that there should be no further cross-examination of the witness on the voir dire.
[43] The following exchange between Crown counsel and the trial judge occurred after independent counsel confirmed that D.S. would not waive solicitor-client privilege (A.R., vol. II, at p. 132):
[CROWN COUNSEL]: And I don’t anticipate even now given the comments of [D.S.’s independent counsel] Mr. Marentette I don’t anticipate needing to call further witnesses.
THE COURT: Well, no legal witnesses that have ever spoken to this man anyway.
[CROWN COUNSEL]: Right.
THE COURT: Right. I mean we’re going to take Mr. Marentette’s word as the final word on that.
[CROWN COUNSEL]: Right.
[44] This exchange between the trial judge and Crown counsel must be read in context. It does not amount to a direction or a ruling not to call other witnesses. The trial judge merely affirmed Crown counsel’s statement that he would not be calling any “legal witnesses that have ever spoken to” the witness (emphasis added). The judge was not asked for a ruling. Had Crown counsel wished to call further evidence, he could have sought direction. The judge would no doubt have sought submissions and considered the extent of the restrictions imposed by solicitor-client privilege before making a ruling.
[45] Since this was the same Crown who had prosecuted D.S. at his separate youth trial, and who negotiated the plea bargain and drafted the ASF, he knew what D.S. or his lawyers could say about those matters, outside the scope of solicitor-client privilege. Thus, I reject the submission that the trial judge curtailed the scope of evidence on the voir dire.
[46] I conclude that the voir dire unfolded as it did primarily due to the Crown’s prosecutorial decisions. Crown counsel was not precluded by the trial judge from calling further witnesses or from posing further questions to D.S. The Crown cannot ask for a new trial on the basis that the prosecution should have been conducted differently.
[47] Further, it should not be inferred from this exchange that the trial judge did not correctly understand the scope of solicitor-client privilege when he made his ruling on the voir dire. Trial judges are presumed to know the law. Further, given the context of this informal exchange, I am not persuaded that it provides a basis to conclude that the trial judge did not understand the scope of solicitor-client privilege. He was neither stating a legal principle nor making a ruling.
[48] Finally, notwithstanding the aspects of cross-examination that would have remained available, the reality is that solicitor-client privilege would curtail significantly the cross-examination available to assess the threshold reliability of the prior inconsistent statement. The Crown could not have probed the conversations between D.S. and his counsel about legal advice in connection with his decision to plead guilty or to accept the ASF.
[49] Simply put, D.S. recanted the portions of the ASF that implicated the appellant and replaced them with assertions that exonerated the appellant. Cross-examination of D.S. did not elicit an explanation for his about-face from the assertions that tied the appellant to the murder. This Court stated in U. (F.J.), at para. 46, that if the witness “provides an explanation for changing his or her story, the trier of fact will be able to assess both versions of the story, as well as the explanation”. Paciocco and Stuesser similarly state that “[a] testing of the witness’s recantation is only possible when the witness admits making the earlier statement and provides a story for his or her recantation” (p. 131 (emphasis added)). See also Khelawon, at para. 76.
[50] In this case, solicitor-client privilege would hinder the fact finder’s opportunity to fully explore any explanation offered. The jurisprudence emphasizes the presence of a “full opportunity to cross-examine the witness [at trial] respecting the statement”: K.G.B., at p. 796 (emphasis added). In Devine, Charron J. held:
It is important to note that the availability of the declarant to be cross-examined will not necessarily tip the scales in favour of admissibility. In order for this factor to weigh in favour of admission, there must be a “full opportunity to cross-examine the witness” at trial (K.G.B., at p. 796). [para. 26]
[51] The trial judge referred to Conway, a case in which the witness could not recall making the prior statement and in which cross-examination therefore would not assist in determining which version was true. Unlike Conway, two versions of the events were before the trial judge in this case that could have been the subject of cross-examination (i.e., the ASF and D.S.’s testimony at the appellant’s trial).
[52] The trial judge noted in this case that there were significant memory lapses in addition to D.S.’s recantation and direct contradiction. I am not satisfied that a fair reading of the trial judge’s reasons suggests that he misunderstood the law. While he quoted from Conway, and the circumstances in that case were somewhat dissimilar, the words he quoted were apt.
[53] As noted above, solicitor-client privilege would have significantly limited the effectiveness of the cross-examination. Thus, even if the trial judge had erred in overstating the scope of solicitor-client privilege or the analogy to Conway, I am not persuaded that it would have materially affected the outcome in these circumstances.
[54] Given the nature of the hearsay dangers in this particular case, the trial judge did not err in concluding that nothing short of full cross-examination could overcome them. Here, the cross-examination at trial would be significantly limited by the claim of solicitor-client privilege. The statement was not videotaped. There had been no oath or affirmation when the statement was made. The transcript of the guilty plea proceedings established the words of the prior statements but was not a suitable substitute to assess D.S.’s demeanour and credibility at the time the statement was made. Lastly, the ASF was not spontaneous and was not in D.S.’s own words. Under the circumstances, I cannot conclude that the trial judge erred in finding that there were inadequate substitutes to test and assess the truth of the evidence.
C. Inherent Trustworthiness: The Circumstances Surrounding the Preparation and Presen