nan Q.B.J. A.D. 1995 No. 52 J.C.S. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: HER MAJESTY THE QUEEN and CUONG SAM, THONG NGUYEN, SHAWN L'HERAULT, KEN CHHAN D.G. Curliss for the Crown J.P. Kwok for the defendant, Cuong Sam N.J. Stooshinoff for the defendant, Thong Nguyen R.P. Piche for the defendant, Shawn L'Herault K.C. Coroi for the defendant, Ken Chhan FIAT LAING J. May 16, 1996 The Crown applies to have the witness Annette Cook,who is an unindicted co-conspirator in this matter andseparately charged with drug offences arising out of this sameinvestigation, declared adverse pursuant to s. 9 of the CanadaEvidence Act, R.S.C. 1985, c. C-5, on the basis that in thecourse of giving her evidence to date, she has demonstrated ahostile attitude towards the position of the Crown, and hascontradicted in a substantial way, her prior video-tapedstatement to police officers made shortly after her arrest. The Crown seeks to use her prior statement, not only for the purposes of impeaching her credibility at trial, but also as substantive evidence that may be left with the jury at the end of the trial. Position of the Parties It is the position of the Crown that it has satisfied the requirements for substantive use of the statement set out by the Supreme Court of Canada in R. v. K.G.B. (1993), 1993 CanLII 116 (SCC), 79 C.C.C. (3d) 257 and in R. v. U. (F.J.) (1996), 1995 CanLII 74 (SCC), 42 C.R. (4th) 133. The defence takes the position:(1)that Annette Cook is not adverse, but is now telling thetruth after lying about certain matters in her statement;(2)the statement was improperly obtained in breach of theconfession rules of voluntariness;(3)the statement does not meet the requirements set out in R.v. K.G.B., supra. In particular, the oath was not administered prior to the taking of the statement, and there was no warning provided at that time, of the perjury consequences of not telling the truth. They state it fails to meet the threshold of reliability. Video-taped Interview Annette Cook was arrested on August 15, 1994, at approximately 7:30 p.m. in possession of approximately four grams of cocaine, immediately after exiting an apartment building at 1901 22nd Street in the City of Saskatoon. She had been under surveillance, and the arrest was planned. She was given the standard police cautions and her rights with respect to legal counsel upon her arrest. She was co- operative from the outset. Immediately following her arrest and the "cautions", Constable Wylie asked her who had given her the cocaine. She replied "Thong did, he got it from the kitchen". At that point, Constable Wylie went back into the apartment building and arrested the accused Thong Nguyen. Shortly thereafter, Constable Wylie turned Ms. Cook over to Constable Morgan for transport. Constable Morgan also asked Ms. Cook who gave her the cocaine. She stated: "Thong gave it to me and said tell the guys to send over $750.00." Upon reaching the Detention Centre in the company of Constable Morgan she was placed private room and offered telephone. At 7:59 p.m. she called lawyer. Upon concluding the call, Constable Morgan asked if she had spoken to lawyer and she indicated she had. He asked her what advice she had received. She stated the lawyer told her "Not to say anything". Constable Morgan then asked her what she wished to do and she stated "I don't know". At this point Constable Morgan states he advised her that he wanted her to know that he would not be opposing her release the following morning. Ms. Cook asked "What does that mean?" Constable Morgan replied "We don't want you locked up before court. You have kids and you are pregnant we won't insist on locking you up until trial okay?" He asked her if she understood what he had said and she said yes. He then went on to say "I would like statement from you about your involvement in cocaine trafficking at 1111 23rd Street West." At this time he stated words to the effect: Now, if you are convicted of possession for the purpose of trafficking, will let the prosecutor know that you were helpful in assisting us in this investigation. nan can't promise you anything in exchange for your help. But can let the prosecutor know you were helpful. At this point Ms. Cook said "Do you think will go to jail?" Constable Morgan replied: "I don't know, but the prosecutor will know if you decide to co-operate with us". Ms. Cook replied okay. Constable Morgan then asked her if she would provide statement regarding her involvement with and knowledge of drug dealing at 1111 23rd Street West. She replied "Okay". Following her agreement to provide statement Constable Morgan proceeded to question her and she provided answers. Constable Morgan testified that when he realized the amount of information she had, he decided that it would be preferable if she was interviewed on video-tape. She agreed. Constable Morgan testified that he stressed to her that with respect to the taped interview, he wished her to tell only the truth and that if she didn't tell the truth, the prosecutor would question her credibility. At the commencement of the video-tape interview Ms. Cook was again warned that she need not say anything. She was also advised that nothing that was said to her by any police officer prior to the interview should influence her in any respect. She agreed she was not threatened or promised with any favours. She was asked why she was upset and she stated she was upset because she was arrested. She again agreed to give statement. The taped interview commenced at approximately 20:15, approximately 16 minutes after she had spoken to lawyer. It lasted approximately 50 minutes. At the commencement of the interview Ms. Cook appears upset and is crying and sniffling in quiet manner. As the interview progresses she appears to settle down and ceases to appear emotional. During the interview Constable Morgan and Constable Woodley were present. In the interview, Ms. Cook confirms the information she previously supplied to Constable Morgan and provides additional information about the activities of the four accused. It is fair to say her statement implicates all four accused in trafficking in narcotics. During the interview, she readily admitted that she had been picking up cocaine at 1901 22nd Street West for approximately two months prior to her arrest and delivering the same to house at 1111 23rd Street West where she delivered the same to either her cousin Leighton Cook, or to another individual who lived at the house named, Chin Nguyen. Both of these individuals are unindicted co-conspirators, and have had charges arising out of this same investigation disposed of. The procedure Ms. Cook described to Constable Morgan was that her cousin Leighton Cook would call her at home and tell her to pick up the cocaine. After receiving the call from her cousin, she would telephone telephone pager number 1-797-0381 which she said was carried by Thong's friends, Tony (evidence establishes is the nickname of the accused Cuong Sam) and Ken (Chhan). She would leave Leighton's telephone number on the pager and would then proceed to an apartment block at 1901 22nd Street West where she would make the cocaine pickup. In the interview she also provided the pager number of Thong Nyugen which she identified as 1-797-3554. Evidence in the trial indicates that the pager she identified as Thong Nguyen's was found in his apartment at the time of his arrest. The other pager number was registered to Chin Nguyen, and was carried by Cuong Sam at the time of his arrest. She indicated in the interview that when she attended at Thong's residence at apartment no. at 1901 22nd Street West sometimes Ken and Tony were there, but mostly it was just Thong. She stated that she had been provided cocaine by all three of these individuals, but she would always deliver it to her cousin Leighton Cook or to Chin Nguyen at 1111 23rd Street West. With respect to the accused, Shawn L'Herault, she stated that she had only met him several days before. She stated when she first met him he was buyer of cocaine and visiting her cousin Leighton. That on at least one occasion she observed him working the back door of the house at 1111 23rd Street West from which it is alleged retail cocaine sales took place and that he was involved in taking money and passing cocaine to retail purchasers. Annette Cook was released the following morning. One week later on August 22, 1994, she was requested to attend at the City Police Station by Constable Wylie and before justice of the peace she swore an affidavit which stated in part as follows: nan willingly provided information in video-taped interview to Constable Gavin Morgan and Constable John Woodley regarding my involvement in this particular investigation. At no time was given any promise or favour or threatened in any manner to provide this information. This information is true to the best of my knowledge and was provided to the officers of my own free will and choosing. Constable Wylie advised her that if there was anything she disagreed with in the affidavit she was free to indicate that. Prior to her swearing it he read it aloud to her and gave her the opportunity to read it herself. Constable Wylie agreed that prosecutor had requested an affidavit from Annette Cook and that the purpose for requesting it was to comply with the Supreme Court of Canada requirements in R. v. K.G.B., supra. Annette Cook testified at the preliminary inquiry. Her lawyer was present. At Vol. I, pp. 69-70, Question 200, she was asked if the video-taped statement was true and she stated it was. Shortly thereafter Crown counsel advised the Court that he would be applying for ruling under s. of the Canada Evidence Act for declaration of hostility on the part of Ms. Cook. It may be assumed that her answers up until that point in time differed to some extent from the contents of the video-tape. The preliminary inquiry adjourned prior to the conclusion of Annette Cook's testimony. She did not return to the preliminary inquiry and she was not cross-examined at all by counsel for the accused. One week before the trial commenced, Annette Cook reviewed the video-tape for the first time in the presence of her lawyer, city police officer, and prosecutor. The city police officer testified that at the time she confirmed her statements on the video-tape with minor exception. Ms. Cook's Testimony at Trial Ms. Cook testified before the jury, that she had not obtained the cocaine she had in her possession at the time of her arrest from Mr. Thong Nguyen, but rather had gone into the apartment and retrieved the same from under the sink in the bathroom without the involvement of Mr. Nguyen. She also testified she did not know if any of the co-accused had telephone pagers, denied she telephoned telephone pager number prior to attending at 1901 22nd Street West to arrange pickup, and denied that Cuong Sam or Ken Chhan ever provided her with cocaine at that location or any location. It was at this point the Crown requested that the jury be excused and this application was brought. Evidence on Voir Dire Prior to invoking the Milgaard procedure R. v. Milgaard (1971), 14 C.R. 34), Crown counsel asked Ms. Cook if reviewing the video-tape would assist her in recollecting facts. (Vide: R. v. Stewart (1977), 1976 CanLII 202 (SCC), 31 C.C.C. (2d) 497 at pp. 500 and 504 (S.C.C.). She denied that it would. She stated that at the time the video-tape was taken she was high on cocaine and pregnant and she said things that were not true. She said she was concerned about what was going to happen to her and she "Made up most of it". She stated most of her video-taped statement with respect to the accused in this matter, was false. It should be stated that at the time of her arrest, Ms. Cook was 19 years old, the mother of four children, and was eight and one-half months pregnant with her fifth child. After receiving the foregoing answers the Crown then invoked the Milgaard procedure and proceeded to take her through the video-tape and ask her at each relevant stage whether the answers she had provided she could now recall and if so, whether they were true or false. fair summary is that Ms. Cook denied every answer she had provided on the video-tape that implicated any of the accused. She readily agreed with the statement she had given with respect to her own personal involvement and the involvement of her cousin, Leighton Cook, and Mr. Chin Nguyen. In the course of the video-taped interview, she had exonerated her father, Edwin Gullickson, from any involvement in dealing with cocaine. She agreed that her evidence in this respect was false and confirmed her father has in fact, plead guilty and is presently incarcerated with respect to his involvement in this matter. Constable Morgan indicated he knew at the time of the video-taped interview her statements in this respect were false because he had independent evidence of Mr. Gullickson's involvement. He stated he did not make an issue of it because he considered it natural that she would wish to protect her father. Section Ruling am satisfied, and did not understand defence counsel to challenge, that the video-taped interview given by Annette Cook is inconsistent with the evidence she has provided so far in the trial, and is inconsistent with what she now states is the truth. The thrust of the defence argument against the ruling that she is adverse, is that she was vulnerable at the time of her arrest, and was induced by police officer to provide statement that would benefit her personal position. They state that because she was under arrest and to be charged with possession of narcotics for the purpose of trafficking, her statement is only admissible if it meets the test of voluntariness applicable to confessions. They say it does not. They state she should not be ruled an adverse witness on the basis of an involuntary statement. As will touch on later, an inconsistent statement is not the only basis on which ruling of adversity can be made. (Vide: R. v. Cassibo (1983), 1982 CanLII 1953 (ON CA), 70 C.C.C. (2d) 498. However, the issue of voluntariness of the statement is relevant when considering whether prior statement should be ruled inconsistent or can be used substantively pursuant to R. v. K.G.B., supra. There is no issue of Annette Cook not being aware that she could choose to remain silent. She had been cautioned accordingly by the police officer, and had been so advised by legal counsel. Therefore, there is nothing unfair or that would bring the administration of justice into disrepute in the police request for statement. (Vide: McLachlin J. in R. v. Hebert (1990), 1990 CanLII 118 (SCC), 77 C.R. (3d) 145 at p. 175 et seq.). Defence counsel say her statement was induced by promise of advantage. In this case, they allege two such inducements: (1)That the police would not oppose Annette Cook's release on remand despite the fact there was reverse onus on her under the Narcotic Control Act; (2)That if she was convicted on the charges she was facing, the police would advise the prosecutor that she had co-operated in their investigation. They state the foregoing inducements were offered at time she was vulnerable emotionally due to her arrest and her family situation. In her testimony on the voir dire Annette Cook testified: (1)That she gave the statement because she thought it would help her. (2)She said anything that came into her mind just to get it over with. (3)That she implicated the accused because they "were around". (4)She stuck with her story about the tape being true until this trial, because she was afraid to admit she had lied. (5)She agreed in general terms that no threats or promises had been made to her by the police officers as she understood those terms. As to the inducements alleged, accept the evidence of Constable Morgan that she would not be held on remand, was unconditional in its terms, (R. v. Fairfield (1993), 39 W.A.C. 17 (B.C.C.A.)) and should have been so understood by Annette Cook. therefore do not consider this statement an inducement. With respect to Constable Morgan's statement that he would tell the prosecutor of the accused's cooperation, the first thing to be noted is that he did not promise any results with this communication. Such statements from police officers have to be looked at in the context in which they are made. (Vide: D.P.P. v. Ping Lin (1976), 62 Cr.App.R. 14 (H.L.); R. v. Hatton (1978), 1978 CanLII 2398 (ON CA), 39 C.C.C. (2d) 281; R. v. Reyat (1993), 80 C.C.C. (3d) 210.) The context in this case, was that Constable Morgan was looking for Annette Cook's assistance to further the investigation with respect to third parties. Based on the surveillance evidence and the cocaine she had in her possession at the time of her arrest, he already had sufficient evidence against her to support charge of possession of cocaine for the purpose of trafficking. This is not factual situation in which the accused person had much down-side in speaking to the police. It is my opinion that Annette Cook concluded she could help herself, as opposed to hurt herself, in making the statement she did. It was business decision regularly made by accused persons who are asked to cooperate. As noted above, she had been willing to offer information to the police officers from the moment of her arrest. It is my view, that Constable Morgan's statement simply encouraged her to make statement she was otherwise inclined to make. The fact that her motivation to do so was to help herself is factor to be taken into account in assessing the reliability of her statement as it relates to third parties, but it does not affect its voluntariness. am satisfied, applying the burden of proof of beyond reasonable doubt, that her statement was voluntary and would be admissible against her. With respect to other evidence am to consider with respect to this application, am satisfied that Annette Cook demonstrated, both in her attitude and in her responses, an adverse position to the Crown. This was most obvious in her pliant responses to anything suggested to her by defence counsel. On the other hand, her responses to Crown counsel's questions were curt, aggressive, and defensive. Taking the foregoing into account as well her inconsistent statement, conclude she is adverse to the Crown within the meaning of s. of the Canada Evidence Act. The Crown is therefore entitled to use cross-examination in the balance of its questioning of her. Substantive Use of the Statement The next question to be addressed is whether the Crown is entitled to place Annette Cook's prior statement (edited to exclude inadmissible portions) before the jury as substantive evidence in the trial. A prior inconsistent statement cannot be introducedin evidence for its substantive content, unless the requirementof necessity, and a threshold of reliability arrived at on abalance of probabilities are established. R. v. K.G.B., supra). When a witness recants, the requirement of necessityis established (R. v. U. (F.J.), supra), and so it is in thiscase. The real issue is whether the prior statement meets thetest for reliability. In U. (F.J.), supra, Lamer C.J. reviewed again the criteria for establishing the threshold of reliability set out in the earlier decision of R. v. K.G.B. He emphasized that the criteria are flexible. He noted: (1)The most important criteria identified is the right of opposing counsel to cross-examine the party providing the prior inconsistent statement in order that the trier of fact may assess the credibility of the same. This criteria is met in this instance. (2)That there be available to the trier of fact "demeanour" evidence which will assist the trier of fact in assessing the credibility of the statement made. The best form of demeanour evidence is video-tape, and the same is available in this matter. (3)The third criteria which is absent in this case, is the administration of contemporaneous oath or affirmation, accompanied by warning that the witness could be subject to perjury charges if the statement turns out to be untrue. In this case, an oath was administered to Annette Cook one week following the video-taped statement in which she swore generally that everything she had said in the statement was true without again viewing that statement. At this time, she knew, and the police knew, that portion of her statement was untrue in which she exonerated her father from any involvement in drugs. She nevertheless swore the affidavit. am of the view, there simply was not enough solemnity attached to the occasion of her swearing the affidavit, to "bring home to her" in the manner contemplated by Lamer C.J. in the foregoing decision, that the oath she was taking would have the same effect as if she was testifying in court before judge. As noted above there was no discussion with her on the consequences of lying. Nevertheless, she did swear that her statement was true within period of time reasonably close to when she made the statement, and such oath viewed objectively, does place her statement one step up from an unsworn statement. As noted above, the witness again swore at the preliminary inquiry that the contents of her video-taped statement were true, while at the same time she apparently offered evidence different from her statement. What defence are really arguing with respect to the oath criteria is that the reliability threshold is not met, even if the witness is sworn and warned prior to giving the statement, when it is subsequently known that at least portion of the statement is false. In other words, form should not override substance. If all or most of the statement was demonstrably false, would agree. However, as with any other testimony offered in the courtroom, the trier of fact is free to accept all, some, or none of the testimony offered. When, as here, there is only one demonstrably falsepiece of testimony in the statement, which does not implicateanyone, but rather attempts to exonerate someone, I am notprepared to say that ipso facto the balance of the statementis unreliable. It is to be noted that the Supreme Court in R. v. U. (F.J.), supra, at p. 149-50 indicated the reliability threshold can be met in the absence of an oath where appropriate substitutes for the oath exist. nan It follows from Smith that there may be situations in which the trial judge concludes that an appropriate substitute for the oath is established and that notwithstanding the absence of an oath the statement is reliable. nan The existence of corroboration is another way of determining the reliability of testimony. In R. v. C.(B.) (1993), 1993 CanLII 8564 (ON CA), 80 C.C.C. (3d) 467, Finlayson J.A. at p. 473 noted the relaxed definition of corroboration as articulated in R. v. Vetrovec (1982), 1982 CanLII 20 (SCC), 67 C.C.C. (2d) (S.C.C.): nan Corroboration is evidence which confirms witness's testimony making the testimony more likely to be true. nan In this case there is evidence introduced on the voir dire which confirms Annette Cook's prior statement in at least number of important particulars. Such evidence includes: (1)She identified from memory two telephone pager numbers, one of which she stated she would call prior to attending at 1901 22nd Street West to pick up cocaine. One such pager was found at the residence of Thong Nguyen at the time he was arrested. The other pager is registered to an unindicted co- conspirator, Chin Nguyen, and was found on the accused Cuong Sam at the time of his arrest. (2)She stated that she would make the telephone call to the pager numbers from pay phone. Independent surveillance evidence confirms that she would stop on route at pay phone and place call. (3)She stated that most of the time she received the cocaine at 1901 22nd Street West from Thong Nguyen. Independent surveillance the day before her arrest observed the accused Thong Nguyen arrive by car at 1901 22nd Street West at approximately the same time Annette Cook did, and they entered the apartment building together. (4)She indicated she would travel to pick up the cocaine by taxi. Independent surveillance evidence confirms this. (5)She stated she would deliver the cocaine to 1111 23rd Street West. Independent surveillance evidence confirms this. The foregoing independent evidence does not corroborate everyaspect of Annette Cook's statement, but does so sufficiently,in enough different particulars, that I am satisfied on thebalance of probabilities that her statement, but for thedemonstrably false portion, meets the threshold ofreliability. It follows that Annette Cook's prior statement maybe introduced in evidence for the substantive truth of itscontents. It will be for the jury to decide after receivingappropriate instructions with respect to the evidence of anaccomplice, and the evidence of a person who has providedinconsistent testimony, what, if any, portions of suchstatement they wish to accept.
FIAT. The Crown applied to have a witness, who was an unindicted co-conspirator and separately charged with drug offences arising out of the same investigation, declared adverse pursuant to s9 of the Canada Evidence Act. She had contradicted her prior video taped statement made shortly after her arrest and had demonstrated hostile attitude towards the Crown. The defence took the position that she was now telling the truth; that the statement was improperly obtained in breach of the confession rules of voluntariness and the statement did not meet the requirements set out in R. v. K.G.B. HELD: The witness' prior statement may be introduced in evidence for the substantive truth of its contents. It will be for the jury to decide what, if any, portions of such statement they wish to accept. 1)A prior inconsistent statement cannot be introduced in evidence for its substantive content, unless the requirement of necessity, and a threshold of reliability arrived at on a balance of probabilities are established. When, as here, a witness recants, the requirement of necessity is established. The real issue is whether the prior statement meets the test for reliability. When, as here, there is only one demonstrably false piece of testimony in the statement, which does not implicate anyone but rather attempts to exonerate someone, the Court was not prepared to say ipso facto the statement is unreliable. 2)The independent evidence sufficiently corroborated her statement in enough different particulars that, but for the demonstrably false portion, it met the threshold of reliability.