Friday, October 24, 2014

In a tree

Agreed facts on a plea may be admissible as KGB statements in other proceedings

R. v. Kanagalingam, 2014 ONCA 727:

[28]       As I have said, a new trial is necessary based on the Vetrovecground of appeal.  Strictly speaking, therefore, it is not necessary to deal with the admissibility of the K.G.B.statements.  In the event of a new trial, however, it may be useful to do so.

[29]       The appellant attacks the trial judge's decision to admit three of the agreed statements of fact for purposes of threshold reliability – those of Selvaraj, Indrakumaran and Ravindran.[2]  In my view, she did not err in doing so. 

[30]       I agree with the trial judge's conclusion that the appellant's objections conflate threshold reliability and ultimate reliability.  While there were many questions to be resolved in terms of the ultimate reliability of the witnesses' statements implicating the appellant – something to which I will return in the Vetrovec portion of these reasons – those questions were for the jury to resolve.  The trial judge had an ample basis on which to conclude that there were sufficient indicators of threshold reliability for purposes of admissibility, in my view.

[31]       There are generally speaking two ways of satisfying threshold reliability: either the trier of fact has a sufficient basis on which to assess the hearsay statement's truth and accuracy, using substitutes for the typical adversarial process (procedural reliability), or the circumstances in which the statement was made provide guarantees that the statement is reliable or trustworthy (substantive reliability): R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at paras. 62-63; R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 30.

[32]       In K.G.B., at pp. 795-96, the Supreme Court of Canada recognized three indicators of threshold reliability that would generally justify the admission of a statement: (i) the statement is made under oath or affirmation following a warning on the significance of the oath and the availability of sanctions for giving a false statement; (ii) the statement is videotaped in its entirety; and (iii) the opposing party has a full opportunity to cross-examine the witness respecting the statement.  These three indicators provide a means by which the trier of fact can test the hearsay statement.

[33]       Here, Selvaraj, Indrakumaran and Ravindran were each represented by counsel who assisted in the preparation of the statements.  Each reviewed their respective statements with counsel prior to their guilty plea hearing.  Each testified under oath, affirmation or a promise to tell the truth at their guilty pleas that the contents of their agreed statement of fact were true.  They did not simply state themselves, or through counsel, that the facts were "substantially true"; indeed, Indrakumaran and Ravindran testified that they were completely accurate, "100 per cent".  The judge hearing their guilty pleas accepted, based on their assurances, that the pleas were voluntary, and on their testimony, that they were founded on evidence that was true and accurate.  Finally, they were available for cross-examination not only (in the case of Indrakumaran and Ravindran) at the appellant's preliminary inquiry but – most significantly – at the appellant's trial, where their conflicting evidence and their explanations for changing their testimony could be tested.  There was little need, therefore, for the taking of the statements to have been videotaped.  

[34]       In short, the threshold reliability requirement "[was] met on the basis that the trier of fact [had] a sufficient basis to assess the statement's truth and accuracy" and there was therefore "no need to inquire further [at that stage] into the likely truth of the statement":  Khelawon, at para. 92.

Wednesday, October 22, 2014

Police falsehood may lead to witness exclusion

  1. For a statement by an accused to a person in authority to be admissible the statement must be voluntary. What if the police mislead an accused?  That may eliminate voluntariness. R v Arnakalla 2014 NUCJ 12:

    [11]  The police next show him a video of his common-law spouse, in which she begs him to tell the truth. The questions become much more pointed. His lack of memory is repeatedly challenged. All of this is within acceptable bounds, but the accused is obviously becoming frustrated and worn down by this process. He actually asks the investigator if they want him to lie, to pretend to remember what he does not. Eventually, he asks on a number of occasions, to be returned to his cell. At this point Constable MacDonald refuses to allow this. He tells the accused, in no uncertain terms, that the interview will end when the police decide it ends and that he is not free to leave the room. The following exchange is informative (Warned Statement of Ruben Arnakallak (November 25, 2011), at 95):

    ARNAKALLAK: I thought you said I can go to my cell anytime I want? MacDONALD: Yeah well, you're under arrest, so you have to listen to the police and I'm the police and right now, we're gonna talk about what happened between you and your brother.

    ARNAKKALAK: I should start lying(?).
    No, I don't want you to lie. I want you to tell the truth. ARNAKALLAK: I am telling the truth. I've been telling the truth.

  2. [12]  What follows in the Transcript of the Accused's statement, is 88 pages of highly suspect speculation by the Accused about what might have occurred. It adds nothing to the case against him, and any detail found in those pages which might found the basis for questions in cross-examination would have extremely limited weight. The fact that the police initially misled the accused about their willingness to allow him to return to his cell is an important factor in determining the impact that the subsequent change in tactic had on the ability of the accused to exercise his free will. The combination of the Accused's emotional state and this tactic, which would have left him with the understanding that the interview was going to continue until he told them what they wanted to hear, render any subsequent comments by the Accused involuntary and unreliable.

Monday, October 20, 2014

Mother and Cubs on Hudsons Bay

Three amigos

Private prosecution maybe stayed without review save for proved abuse of process

R. v. Olumide, 2014 ONCA 712:

[2]          Section 579 of the Criminal Code gives the Attorney General the authority to direct a stay of proceedings at any time.  The discretion to do so is reviewable only in the event of abuse of process.  There is a presumption of prosecutorial good faith: see Krieger v. Law Society (Alberta) 2002 SCC 65 and R. v. Nixon 2011 SCC 34.  The appellant has the onus of proving an abuse of process in the exercise of prosecutorial discretion.  

[3]          Mr. Olumide alleged that the Attorney General is in an inherent conflict of interest and this constitutes an abuse of process.  The motion judge found that there was no evidence of abuse of process.  Absent proof of an abuse, the discretion is not subject to review by the court: Campbell v. Ontario (A.G.) (1987), 35 C.C.C. (3d) 480 (Ont. C.A.), leave to appeal refused, [1987] S.C.C.A. No. 202. There is no evidence to point to an abuse of process.