NOVA SCOTIA COURT OF APPEAL
Citation: R. v. Poulette, 2008 NSCA 95
Date: 20081016
Docket: CAC 290280
Registry: Halifax
Between:
Benjamin Andrew Poulette
Appellant
v.
Her Majesty the Queen
Respondent
Restriction on publication: pursuant to s. 486.4(1) of the Criminal Code
Judges: Roscoe, Bateman and Hamilton, JJ.A.
Appeal Heard: September 25, 2008, in Halifax, Nova Scotia
Held: Appeal against conviction and sentence dismissed per reasons for judgment of Bateman, J.A.; Roscoe and Hamilton, JJ.A. concurring.
Counsel: Allan F. Nicholson and Patricia A. Fricker, for the appellant
Mark Scott, for the respondent
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
( a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step‑daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
Reasons for judgment:
[1] After a trial in Provincial Court before Judge Peter Ross, Benjamin Andrew Poulette was convicted of sexual assault causing bodily harm (s.272(1)(c) Criminal Code) and sentenced to a federal prison term of two years and three months, after credit for nine months equivalent remand time. This is an appeal of conviction and sentence.
[2] The case is unusual in that, unrelated to the assault, the complainant died prior to trial. As a consequence, her videotaped police statement about the assault was admitted into evidence. The admissibility of that statement is the significant issue on this appeal.
BACKGROUND
[3] According to the complainant's statement, on the evening of the 14th of January, 2005, she encountered the appellant at the corner store near Ingoville Street, Sydney, Nova Scotia. She had briefly met the appellant once before, and was told by her mother that he was a distant relative. She claimed that he told her he needed a place to hide because the police were looking for him. The two proceeded to her aunt's house which was vacant and nearby. There they sniffed gasoline or lacquer.
[4] The complainant said that when she rebuffed the appellant’s sexual advances he became angry. She threatened to call the police and a struggle ensued. The appellant stabbed her in the right arm with something sharp, choked her and banged her head. She fought back, biting his lip. Unable to fend him off he kissed her, put his hand down her pants and digitally penetrated her. She continued to struggle with him and was eventually successful in calling for help through an open window in the front of the residence.
[5] The complainant's cries for assistance were overheard by Angus MacNeil who was on his way back from the corner store. He had heard screaming and thudding noises coming from the aunt’s house. As he stood on the sidewalk at the front of the house he heard what he thought was a young woman yelling "help, help me". Mr. MacNeil telephoned the police after which the complainant stuck her head out of the window and said "help me sir, help me. I'm being raped, I need some help".
[6] Mr. MacNeil reassured her that help was on the way, the dispatcher having informed him that the police were close by. Awaiting their arrival, he heard a noise at the side of the house and saw a heavyset man leaving the aunt’s house. The police arrived and pursued the man.
[7] Constable Jim Taylor found the appellant hiding behind a shed and arrested him noting that the appellant had blood on his face. A search of the area where Mr. Poulette was hiding revealed, among other things, matches and a Pepsi bottle containing a substance believed to be paint thinner or acetone. Also found was a Moosehead Dry beer bottle and a Moosehead Dry Ice beer bottle, both of which were warm, although the night was cold.
[8] Constables Jamie Dawson and Dan Lewis attended to the complainant who was sitting on the step of the aunt’s house. She told them that she and the appellant were sniffing gas in the house and that the appellant had tried to rape her. The police observed that her pants were unbuckled. Although she appeared somewhat impaired and distraught, she was very clear in what she was saying, responsive to their questions and they had no difficulty understanding her.
[9] Constable Dawson accompanied the complainant to the Cape Breton Regional Hospital, where she underwent a sexual assault examination. At the hospital, she indicated that Mr. Poulette had pinned her down, tried to pull her pants down and put his hands down her pants, penetrating her vagina with his fingers.
[10] After the hospital examination the complainant attended the police station where she gave a videotaped statement to lead inspector, Sergeant Walter Rutherford of the Cape Breton Regional Police.
[11] The appellant also provided a videotaped statement to the police. He acknowledged meeting the complainant outside the store, accompanying her to her aunt’s vacant house and sniffing the solvent with her but denied the sexual assault.
[12] Mr. Poulette was charged with four counts arising from the alleged assault. The Crown, unable to locate the complainant for the first scheduled trial date (April 13, 2005), gave notice of its intent to make application to introduce her videotaped statement to the police for the truth of its contents.
[13] After several adjournments, resulting primarily from the appellant’s failure to appear and after it was learned that the complainant had died, the voir dire to determine the admissibility of the statement was held on the 4th of May, 2007. The Crown called several witnesses: Dr. Chris Milburn, who examined the complainant immediately after the event; Sergeant Walter Rutherford; Angus MacNeil; Constable Jamie Dawson; Constable Jim Taylor and Constable Dan Lewis. The defence offered no evidence. With the consent of the defence, the appellant’s statement to police was admitted into evidence on the voir dire. The decision on the admissibility of the complainant’s statement was reserved to May 30, 2007 when the judge ruled the statement admissible.
[14] The trial proceeded on September 28, 2007 with the voir dire evidence, including the appellant’s statement, waived in by consent. The Crown presented some additional evidence. The defence elected to call none. On October 31, 2007 the judge acquitted the appellant of uttering threats and break and enter charges. He entered an acquittal on the aggravated sexual assault but convicted on the included offence of sexual assault causing bodily harm. He found that the unlawful confinement charge was subsumed in the assault and did not enter a separate conviction on that count.
ISSUES
[15] The appellant says:
(i) the learned trial judge erred in law in admitting the complainant’s statement into evidence;
(ii) the verdict, premised on the trial judge’s finding that the complainant’s statement was reliable, was unreasonable;
(iii) the sentence imposed by the learned trial judge was excessive and unduly harsh.
STANDARD OF REVIEW
[16] In R. v. Smith; R. v. James, 2007 NSCA 19, [2007] N.S.J. No. 56 (Q.L.), Cromwell, J.A., for this Court, set out the standard of review applicable to the admission of statements under the principled exception to the hearsay rule:
[166] Appellate review of the admission of these statements must accept the trial judge's findings of fact absent manifest error. However, the correctness standard of review applies to the questions of whether the judge invoked an incorrect legal standard, failed to consider a required element of a legal test or made some other error in principle. In addition, the judge's application of the legal principles to the facts will generally be reviewed for correctness in rulings such as this concerning the admissibility of evidence: R. v. Merz (1999), 140 C.C.C. (3d) 259 (Ont. C.A.) at para. 49; R. v. Underwood (G.B.) (2002), 170 C.C.C. (3d) 500 (Alta. C.A.) at paras. 60‑63. R. v. Assoun (2006), 207 C.C.C. (3d) 372, leave to appeal ref'd [2006] S.C.C.A. No. 233 (C.A.) at para. 54; R. v. P.S.B., (2004), 222 N.S.R. (2d) 26 (C.A.) at para. 37.
[17] The trial judge’s ruling on admissibility, if informed by correct principles of law, is entitled to deference. There is no basis to interfere with the trial judge’s weighing of the factors supporting or countering the reliability of the statement absent error in principle or a finding that the trial judge’s decision is unreasonable or unsupported by the evidence. (R. v. Blackman, 2008 SCC 37, [2008] S.C.J. No. 38 (Q.L.) at paras. 36 and 46)
ANALYSIS
General Principles
[18] As stated above, this appeal centers on the trial judge’s admission of and reliance upon the videotaped police statement of the deceased complainant. This out-of-court statement which was offered for the truth of its contents, is hearsay and presumptively inadmissible.
[19] The essential features of a hearsay statement are that it is tendered to prove the truth of its contents and there is no opportunity to contemporaneously examine the declarant (R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 35). Hearsay is excluded not because it is irrelevant to the inquiry before the court, but due to the difficulty in testing its reliability. In R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 at para. 159, Iaccobucci, J., writing for the majority of the Court, cited the following commentary from the Law Reform Commission of Canada in its 1975 Report on Evidence, pp. 68-69, as descriptive of the problems attendant to hearsay evidence:
Hearsay statements are excluded from evidence in trials because of the difficulty of testing their reliability. If a person who actually observed a fact is not in court, but a statement he made to someone about it is introduced in evidence, there is no way of inquiring into that person's perception, memory, narration or sincerity. His statement about the fact might be false because he misperceived it or did not remember it correctly, or he may have misled the person to whom it was made because he used words not commonly used, or he may simply have lied about it. These factors, which determine the reliability of his statement, can only be tested if he is in the courtroom and subject to cross‑examination.
[20] Admission of a statement which does not fall under any of the traditional exceptions to the hearsay rule is dependent upon the proponent establishing, on a balance of probabilities, that its admission is: (i) necessary; and, (ii) that the statement is reliable. Even where those criteria are established, the judge has a residual discretion to exclude the evidence if its probative value is outweighed by its prejudicial effect (see para 65, below). This is known as the “principled” exception to the hearsay rule. (R. v. Blackman, supra at para. 33).
[21] The principled exception has been developed and refined in a series of cases including: R. v. Khan, [1990] 2 S.C.R. 531; R. v. Smith, [1992] 2 S.C.R. 915; R. v. B. (K.G.), [1993] 1 S.C.R. 740; R. v. U. (F.J.), [1995] 3 S.C.R. 764; R. v. Starr, supra; R. v. Khelawon, supra; and, most recently, R. v. Blackman, supra.
[22] Cases involving the introduction of hearsay statements under the principled rule fall generally into two categories: (1) where the witness testifying at trial has made a prior inconsistent statement and the Court is asked to receive that prior statement. In such circumstances, the declarant is available for cross-examination at trial (see, for example, R. v. B. (K.G.), supra and R. v. U. (F.J.), supra); and (2) where the declarant is not available for cross-examination at trial (see, for example, R. v. Khan, supra; R. v. Smith, supra; R. v. Khelawon, supra; R. v. Blackman, supra; and R. v. Starr, supra).
[23] Here, due to the death of the complainant, the necessity of introducing her statement is conceded by the appellant. However, it is the appellant’s position that the judge erred in determining that the Crown had met the burden of proving, on a balance of probabilities, that the statement was reliable.
[24] As the law has developed, it is recognized that the inability to test the evidence through cross-examination does not bar the admission of the hearsay evidence when: (i) there is no real concern about whether the statement is true or not because of the circumstances in which it was made; and/or (ii) circumstances are such that the trier of fact will be able to sufficiently test the truth and accuracy of the statement. These situations are not mutually exclusive alternatives and can both be considered in assessing the admissibility of a statement (R. v. Khelawon, supra, at paras. 49 and 61- 63).
[25] A distinction between threshold and ultimate reliability must be maintained by the trial judge. Threshold reliability focusses on the admissibility of the statement. Ultimate reliability concerns whether the statement, once admitted, will be relied upon by the trier of fact in deciding the issues in the case. Where a judge is sitting with a jury, the judge determines threshold reliability, while the jury, as trier of fact, decides whether the statement is ultimately reliable. A judge sitting without a jury must equally make separate inquiries.
[26] As was clarified in R. v. Khelawon, supra, while the inquiries must be maintained separately, the same criteria may be relevant to both threshold and ultimate reliability. Charron, J., writing for the Court, explained:
1 This appeal turns on the admissibility of hearsay statements under the principled case‑by‑case exception to the hearsay rule based on necessity and reliability. In particular, guidance is sought on what factors should be considered in determining whether a hearsay statement is sufficiently reliable to be admissible. This Court's decision in R. v. Starr, [2000] 2 S.C.R. 144, 2000 SCC 40, has generally been interpreted as standing for the proposition that circumstances "extrinsic" to the taking of the statement go to ultimate reliability only and cannot be considered by the trial judge in ruling on its admissibility. The decision has generated much judicial commentary and academic criticism on various grounds, including the difficulty of defining what constitutes an "extrinsic" circumstance and the apparent inconsistency between this holding in Starr and the Court's consideration of a semen stain on the declarant's clothing in R. v. Khan, [1990] 2 S.C.R. 531, the declarant's motive to lie in R. v. Smith, [1992] 2 S.C.R. 915, and most relevant to this case, the striking similarities between statements in R. v. U. (F.J.), [1995] 3 S.C.R. 764.
. . .
4 . . . I have concluded that the factors to be considered on the admissibility inquiry cannot be categorized in terms of threshold and ultimate reliability. Comments to the contrary in previous decisions of this Court should no longer be followed. Rather, all relevant factors should be considered including, in appropriate cases, the presence of supporting or contradictory evidence. In each case, the scope of the inquiry must be tailored to the particular dangers presented by the evidence and limited to determining the evidentiary question of admissibility.
(Emphasis added)
The Decision on Admissibility
[27] As the trial judge’s oral decisions on both the voir dire and after the trial are unreported, I will refer to his reasons in some detail. In reaching his conclusion that the complainant’s videotaped statement was admissible and after correctly observing that the onus is on the Crown to establish reliability on a balance of probabilities, the judge said at pp. 160-61:
The decision that I must make at this juncture is whether the evidence is admissible but not a conclusion as to ultimate reliability. The question is whether it meets the threshold reliability test and if that is met then what weight the statement acquires, what weight is given, what significance it receives is to be weighed at the end of the case in the context of all the evidence that may be admitted. And so it is important not to confuse those two tests and not to conflate one with the other.
[28] After acknowledging the importance of separating the two tests, the judge followed with a clear and accurate summary of the principled exception to the hearsay rule and stated that a hearsay statement will only be admissible if “truth and accuracy can nonetheless be sufficiently tested by means other than contemporaneous cross examination”. He then acknowledged that the Court in R. v. Khelawon, supra had deviated from the strict separation of factors relevant to each stage of the inquiry as had previously been laid down in R. v. Starr, supra. The trial judge said:
... I am not limited to a consideration of the circumstances surrounding the taking of the statement but to much broader range of factors. Some things that the court will look at in such an application is the inherent detail and description of the statement as opposed to answers that are merely yes and no. Look to whether there is any way to test the accuracy of the statement against other evidence, look at possible motive, sometimes a statement maker has a motive to discredit an accused. It will look at other possible explanations for the condition of the complainant and I will later talk about the injuries that she suffered, apparently at the hand of the accused and will look at influences upon the maker of the statement at the time the statement was given and here of course this includes the influence of solvent abuse which is a fundamental concern of defence counsel.
[29] Drawing from the testimony of the Crown witnesses on the voir dire, the judge noted the following points as relevant to his decision on admissibility:
· Angus MacNeil heard the complainant’s cries for help and her assertion that she was being raped;
· Constable Taylor observed the appellant hiding with blood on his face and in possession of beer of the brand mentioned by the complainant in her statement;
· Constable Dawson observed that the complainant was distraught but clear and precise in her language. He had no difficulty understanding her;
· Constable Lewis testified that the complainant “blurted out” the name of the appellant, said that he had tried to rape her and told him that they had been sniffing gas together;
· Dr. Chris Milburn testified that he examined the complainant at the hospital within a few hours of the event; he had met her at least twice before; he found her level of impairment was slight; she had no trouble communicating; he testified that solvent abusers are often a little slow in their speech, but that manner of talking was normal for her.
· According to Dr. Milburn’s evidence the complainant had a mark around her neck, a puncture wound to her arm, a swollen lip and swelling above her right eye, all of which were consistent with her account of what had happened.
· Sergeant Rutherford, who took the statement, testified that she was coherent in relating the details of the incident.
[30] The judge noted that the fact that the complainant had given a consistent account of events to all of the above persons, did not verify the truth of her allegations, but was relevant to her state of mind and demeanour following the incident. This was important to assessing the defence theory that she was so impaired by solvent sniffing that she had hallucinated the assault.
[31] The judge discussed, as well, the aspects of the statement which the appellant asserted detracted from its reliability. The appellant submitted that the video was of poor quality showing primarily a side view of the complainant’s face while making the statement and with the camera positioned some distance away from her. Although the judge agreed that the picture quality and position could have been better, he was satisfied that the video gave him a better account of the circumstances in which the statement was taken, the complainant’s demeanour and her coherency, than would a transcript. The judge was also mindful of the appellant’s submission that the fact that the complainant had substantially overstated the length of the encounter with the appellant, estimating they were together for about two hours, when, in fact it was only about 30 minutes fatally detracted from her reliability. This, the judge found, was an exaggeration which did not undermine the potential value of the statement.
[32] The judge’s comments on the value of a videotape of the statement in assessing admissibility are consistent with the remarks of Lamer, C.J. in R. v. B. (K.G.), [1993] 1 S.C.R. 740 at pp. 792-93:
Proponents of the orthodox rule emphasize the many verbal and non‑verbal cues which triers of fact rely upon in order to assess credibility. When the witness is on the stand, the trier can observe the witness's reaction to questions, hesitation, degree of commitment to the statement being made, etc. Most importantly, and subsuming all of these factors, the trier can assess the relationship between the interviewer and the witness to observe the extent to which the testimony of the witness is the product of the investigator's questioning. Such subtle observations and cues cannot be gleaned from a transcript, read in court in counsel's monotone, where the atmosphere of the exchange is entirely lost.
All of these indicia of credibility, and therefore reliability, are available to the trier of fact when the witness's prior statement is videotaped. . . . The audio‑visual medium captures other elements of the statement lost in a transcript, such as actions or distinctive motions which the witness demonstrates (as in this case), or answers given by nodding or shaking the head. In other words, the experience of being in the room with the witness and the interviewing officer is recreated as fully as possible for the viewer. Not only does the trier of fact have access to the full range of non‑verbal indicia of credibility, but there is also a reproduction of the statement which is fully accurate, eliminating the danger of inaccurate recounting which motivates the rule against hearsay evidence. In a very real sense, the evidence ceases to be hearsay in this important respect, since the hearsay declarant is brought before the trier of fact.
(Emphasis added)
[33] In addition to the above points, after having reviewed the videotaped statement, the judge made the following observations which, in his view, supported the threshold reliability:
· The statement was taken within four hours of the alleged event;
· In recounting the events to Sergeant Rutherford, the complainant initially summarized the essential features of the encounter “he tried to rape me, he beat me, he said he was going to kill me, he stabbed me in the arm”, then went on to elaborate on each point. From this the judge concluded that the complainant was cogent and coherent;
· The judge did not agree with the defence submission that the complainant’s account of how she first met the appellant was inconsistent within the statement;
· Her speech was clear and she had a natural cadence and tone to her voice. She did not present as slow or confused in how she described things. When reminded by Sergeant Rutherford to speak up she acknowledged that request, made eye contact with him and complied;
· She was able to elaborate on areas when asked to do so;
· The complainant spoke of biting the appellant’s lip - the photographs of the appellant taken after the encounter depicted a mark on his lip;
· She spoke of looking out the window and yelling to a guy for help - which is corroborated by Mr. MacNeil’s evidence;
· When describing her feelings and her responses to the event, the judge observed that she appeared to be “in the moment”;
· During the interview she was able to anticipate some questions and provide an answer before Sergeant Rutherford had completed the question;
· The judge rejected the assertion of the appellant that when the complainant rested her head on the table she had passed into unconsciousness during the interview.
[34] The judge concluded:
Having considered all of the evidence here it is my conclusion that the crown has met the burden upon it to establish the threshold reliability of this statement and I am going to rule that it is admissible into evidence . . .
[35] The appellant says the judge erred in finding the statement admissible. I am unable to discern from the appellant’s written or oral argument the alleged error committed by the judge at the threshold stage. The appellant says that the judge failed to separate the inquiries into threshold and ultimate reliability, but does not identify any factors relied upon by the trial judge at the threshold stage which are not relevant to its admissibility.
[36] In submissions to the judge at the close of the voir dire, counsel for the appellant outlined his position on the deficiencies in the statement: the videotape did not adequately reveal the complainant’s facial expressions; her demeanour, in counsel’s view, showed her to be intoxicated; the complainant contradicted herself during the statement on peripheral events; her significant overestimate of the length and physical content of the encounter was more consistent with an hallucination.
[37] The judge’s reasons on the voir dire addressed each of these concerns. As I have indicated above, the appellant does not say that the criteria weighed by the judge were irrelevant to threshold admissibility.
[38] The appellant takes issue with the judge’s brief observation, during his oral reasons, that the complainant had no obvious motive to lie about the events. Had there been evidence of a motive to fabricate suggested by the circumstances it clearly would have weakened the case for admission of the statement. I am not persuaded that the judge considered the absence of evidence of a motive to lie as a factor favouring admission (R. v. Blackman, supra at paras. 41 - 42). Indeed, it was not the appellant’s theory that the complainant was lying about events, but that she had hallucinated and mistakenly thought the sexual assault had occurred due to the effects of the solvent sniffing.
[39] There is no merit to the appellant’s argument that the judge failed to appreciate that hearsay statements are presumptively inadmissible. His lengthy discussion of the criteria of necessity and reliability and the importance of testing evidence through cross-examination negate this submission.
[40] With the consent of the appellant, the Crown tendered the appellant’s statement to the police at the voir dire, there being no issue on voluntariness nor suggestion that the statement was obtained in breach of the appellant’s Charter rights (Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11).
[41] The appellant argues that the judge misused the appellant’s statement by relying upon it as corroborative of the complainant’s statement for purposes of threshold admissibility, as had been urged by the Crown. In this regard the judge said:
[The evidence presented at the voir dire] also includes the statement of the accused, this was tendered as part of the voir dire but I will say with respect to that that it is not to my mind as important to the decision here as other pieces of evidence. The statement of Mr. Poulette, the accused, contains denials, it also contains things which arguably corroborate the statement of the complainant. There are consistencies and inconsistencies. Whether that statement itself is admissible at trial may still be an open question and although it was tendered as part of the voir dire my decision here is based on the other pieces of evidence that I have just mentioned which were brought forward by the crown on the date of the hearing.
(Emphasis added)
[42] I am not persuaded that the trial judge relied upon the appellant’s police statement on the question of threshold admissibility. However, I add that the appellant has cited no authority for the proposition that, had he done so, it would have been an impermissible use of the statement.
[43] Having reviewed the record and watched the complainant’s videotaped statement, I am satisfied that the judge’s factual findings are supported by the record. Additionally, all of the factors reviewed by the judge, which were drawn from the vive voce evidence at the voir dire and from his viewing of the complainant’s statement, were rationally connected to his assessment of the circumstances in which the statement was made or in evaluating its likely initial truth or accuracy. I can find no error in principle, nor am I persuaded that the judge’s decision is unreasonable or unsupported by the evidence. Consequently, there is no basis upon which to interfere with his weighing of the factors supporting the threshold reliability of the statement (see para. [17] above).
The Decision on Ultimate Reliability
[44] It was agreed by counsel that the evidence from the voir dire, including the appellant’s videotaped police statement, be waived into the trial. There was limited additional evidence presented: Dr. Chris Milburn again testified, elaborating on his physical examination of the complainant. Other witnesses included Tracy MacNeil, the clerk working at the corner store where the complainant first encountered the appellant on January 14; Sergeant James Alan MacLean of the Cape Breton Regional Police who took photographs at the scene; and Sergeant Walter Rutherford, mentioned above, the principal investigator who took the appellant’s statement. The defence elected not to call evidence.
[45] As noted above, the appellant submits that the judge erred by failing to separate the inquiry into the admissibility of the complainant’s statement from the determination of its ultimate reliability. To exemplify the alleged error, the appellant refers to the following comments of the trial judge:
. . . Much of what I said at the voir dire has relevance, equal relevance, to the assessment of the evidence at the trial, and I will refer back accordingly to some of the comments I made at that earlier juncture. . . .
As I said, some of the reasoning on the voir dire is relevant today. I'm going to refer back to the transcript of those reasons ¼. I will say as a preliminary comment that the additional evidence at the trial, what additional evidence there was, did not in my view detract from the various indicators of truthfulness which I alluded to in the decision on the voir dire, and those still being valid considerations which are important, I am going to, as I say, just refer to a couple of them.
[46] I have already referred to R. v. Khelawon, supra, where the Supreme Court retreated from its earlier position in R. v. Starr, supra that only factors going to the circumstances surrounding the making of the statement could be considered at the admissibility stage. The Khelawon Court broadened the initial inquiry to include factors bearing on the truthfulness of the statement. Charron, J. wrote:
52 The Court's statement [in Starr] that "[t]hreshold reliability is concerned not with whether the statement is true or not" has created some uncertainty. While it is clear that the trial judge does not determine whether the statement will ultimately be relied upon as true, it is not so clear that in every case threshold reliability is not concerned with whether the statement is true or not. Indeed, in U. (F.J.), the rationale for admitting the complainant's hearsay statement was based on the fact that "the only likely explanation" for its striking similarity with the independent statement of the accused was that "they were both telling the truth" (para. 40).
(Emphasis added)
[47] As Charron, J. explains in R. v. Khelawon, supra, if the circumstances surrounding the making of the statement are, in themselves, sufficient to remove concerns about reliability, it is unnecessary to inquire further into the truth of the statement. However, if the surrounding circumstances themselves do not suffice, the judge is entitled to consider indicia of the truthfulness at the admissibility stage:
92 . . . When the reliability requirement is met on the basis that the trier of fact has a sufficient basis to assess the statement's truth and accuracy, there is no need to inquire further into the likely truth of the statement. That question becomes one that is entirely left to the ultimate trier of fact and the trial judge is exceeding his or her role by inquiring into the likely truth of the statement. When 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 ‑ recall U. (F.J.).
[48] Here, at the admissibility stage, the circumstances surrounding the making of the statement were of some assistance to the analysis (it was given close in time to the alleged assault; the statement was made to a person in authority; and the complainant appeared coherent). However, the judge did not err by considering, as well, factors tending to bear on the truth of the statement.
[49] It was appropriate for the judge to again weigh those factors supporting the truthfulness of the statement, when assessing the ultimate reliability.
[50] As the judge’s reasons reveal, there is no question that he had not predetermined the ultimate reliability of the statement. He said:
The evidence on this case is comprised of two statements which were audio and video taped. They were unsworn statements, but both are in evidence at the trial. One is from the Accused, Mr. Poulette... A statement likewise taken from the Complainant was admitted into evidence. This case therefore is rather unusual in that the two principal witnesses, neither have you taken the stand.... in Khelawon the Supreme Court of Canada expanded what the court may consider in looking at the criteria of necessity and reliability, expanded it to include factors outside the four corners of the document and the specific circumstances of the taking of the statement permitted a consideration of extraneous evidence or corroborating evidence, and that I did at an earlier juncture of this proceeding, and determined that this was an admissible piece of evidence and available to the Crown in this prosecution.
(Emphasis added)
[51] And after referring to the evidence in some detail he continued:
So as I’ve said, the evidence here is comprised of these two statements, two witnesses, neither of whom were subject to cross-examination. That makes the assessment of credibility a particularly challenging one in this case, but there was additional evidence from civilian, police and medical sources, and how this evidence from sources other than [the complainant] or the Accused, how that supports or undermines the likely truthfulness of either of the audio/video taped statements is a very important aspect of this case, and the outcome hinges to a considerable degree on corroboration.
[52] From the above comments it is clear that the judge was concerned with the fact that the complainant's unsworn statement was the centerpiece of the Crown's case and that she was not available for cross‑examination. Consequently, on the question of ultimate reliability, he looked carefully at evidence bearing on the truthfulness of her statement.
[53] After reviewing the requirements of R. v. W.(D.), [1991] 1 S.C.R. 742 he continued:
As I said, some of the reasoning on the voir dire is relevant today. I’m going to refer back to the transcript of those reasons, and just repeat quickly some things I said on May 30th, 2007 that are also relevant at this stage of the trial, at this final stage on the ultimate issue of credibility and ultimately on whether the Crown has proven guilt beyond a reasonable doubt. I will say as a preliminary comment that the additional evidence at the trial, what additional evidence there was, did not in my view detract from the various indicators of truthfulness which I alluded to in the decision on the voir dire, and those still being valid considerations which are important, I’m going to, as I say, just refer to a couple of them briefly.
(Emphasis added)
[54] The judge referred to the fact that Dr. Milburn knew the complainant and found her to be coherent on the night in question, nor did she seem impaired. He referred, as well, to the complainant’s accounts to the police, medical personnel and in her formal statement. Her consistency in these accounts, he observed, did not serve to bolster “the literal truthfulness” of her story but were relevant to her general state of mind and “particularly in considering the defence argument that she may have been fantasizing in her description of the events.”
[55] He went on to note that the mark around her neck and the wound to her arm were consistent with her story of what had happened. He rejected the appellant’s submission that there was internal inconsistency in her statement. He commented on her demeanour as he had observed it in watching the videotaped statement:
... She had a natural cadence and a tone to her voice. She responded quickly to questions. When she was asked about whether she had drunk some alcohol she seemed to be searching her memory. She spoke about drinking Moosehead Dry Ice beer, which as I noted then and note again, is quite telling in light of what police later found at the scene, which was one can or bottle of that particular type of beer which was apparently warm and fresh, and so there is that aspect of corroboration. She said in the statement, “I bit the hell out of his lip”, and there were photos of the Accused at the voir dire stage with a mark on his lip. At that point there was no medical evidence about that. At trial there was some additional evidence . . .
...She seemed to be aware at all times [during her statement to the police]. She was left alone in the room for awhile. She put her head down, but she seemed quite alert when Sergeant Rutherford came back in. When he asked a question that seemed to be somewhat confusing, that anyone would have trouble understanding, she engaged him, asked for clarification. She denied some of his suggestions, again rather quickly. Towards the end of her statement she talked about what it was like to be in the house even before the alleged assault. She talked about the fact that she could hear the cars going by outside, that it was a quiet place. Again, it seemed to me to be someone who is psychologically centred in the events that she was describing, and in a general sense I would repeat, as I said earlier that her account seemed to be reasonably coherent, cogent and consistent....
[56] As to the appellant’s theory that the complainant had hallucinated the event, the judge said:
There is nothing in Dr. Milburn’s evidence, nor any other evidence in the case, to show that this level of solvent abuse distorts memory or causes hallucinations. I have no doubt that it would affect a person, but nothing that it would create those extreme distortions or hallucinations. I’ve already mentioned the fact that she talked about the Moosehead Dry Ice, remembered that particular detail, and that an actual bottle of that beverage was found warm and fresh near the scene. Sergeant Rutherford said her demeanor in getting the statement was much the same as when he saw her earlier at the hospital, again going to the consistency of her demeanor throughout the course of the events that evening. ...
[57] The judge discussed the fact that the complainant significantly exaggerated the time over which the event occurred and the physicality of the encounter. He continued:
I have considered those exaggerations, I find they are exaggerations and I have certainly factored them into the ultimate outcome in the case. At the same time I note, as anyone might, that exaggerating is not an uncommon thing, and that people who are attempting to convey the truth of something do sometimes exaggerate in order to impress the listener of the essential truth of what they are attempting to say. I note that [the complainant’s] statement, including these exaggerations, were given to a police officer, not in the courtroom, and although it may seem somewhat unusual, this is an unusual case, to me they do not impact as negatively on her credibility as they might if she had given them in a courtroom, where a witness testifying would be more keenly aware of the need to be accurate. Having said that, again, these are important features. Defence is quite correct to call my attention to them and I have considered them in the evaluation of the evidence.
Another piece of corroboration in mutual support, if you will, is the portion of [the complainant’s] statement when she talks about seeing a person outside and going to the window. That mirrors the evidence of Angus MacNeil really quite closely, and as I said, blood was found at the threshold of that window by police later on.
...
And so we have then by way of corroboration in a more general sense, [the complainant’s] physical injuries and the consistency that they show in some particulars with her description of events and things that he did such as grabbing her by the neck. We have the physical injury to Mr. Poulette, the Accused. We have the blood found in the apartment, especially at the window, and we have what Angus MacNeil heard and saw, the thudding and [the complainant] distraught at the window.
[58] As is evident from the above excerpts, the judge made a full, independent assessment of ultimate reliability after the trial and did not simply rely upon his preliminary finding of admissibility.
[59] On the question of ultimate reliability the judge, appropriately, referred to the appellant’s statement in the context of the R. v. W.(D.) analysis. He said:
I’ve given a more careful examination of the Accused’s statement at this juncture of the proceeding than at the voir dire. His statement was not a critical factor, in my view in the admissibility of the Complainant’s statement, but... and I made scant if any reference to it in the voir dire decision. I have of course considered it at this trial stage, and ah, will make some comments to it here in view, again, of the approach sets out in R. v. W.(D.).
(Emphasis added)
[60] Following this introduction he reviewed the appellant’s statement in detail. The judge concluded that it did not raise a reasonable doubt.
[61] He weighed the evidence “in light of the inherent limitations that exist from the fact that the witness could not be cross-examined, in light of the exaggerations but also in light of the important points of corroboration” and concluded that the Crown had met the burden of proving its case beyond a reasonable doubt.
[62] I am not persuaded that the judge failed to conduct the two stage inquiry mandated by the principled exception to the hearsay rule nor that he erred in law or in principle in its application. I am satisfied, as well, that he carefully explored and evaluated the factors which supported the ultimate truth of the statement, notwithstanding the absence of an oath or cross-examination.
Unreasonable Verdict
[63] The appellant’s submission that the verdict is unreasonable is based, as well, upon his disagreement with the judge’s findings on threshold and ultimate reliability. I have addressed those submissions above. The judge did not err in admitting the statement under the principled exception to the hearsay rule, in determining that the statement was ultimately reliable, nor in his application of R. v. W.(D.).
[64] I am not persuaded that the verdict is an unreasonable one. In so concluding I have applied the standard of review as recently summarized by Fichaud, J.A. for this Court in R. v. Abourached, 2007 NSCA 109:
[29] I will consider whether the findings essential to the decision are demonstrably incompatible with evidence that is neither contradicted by other evidence nor rejected by the trial judge. I will also consider the traditional Yebes/Biniaris test, preferred by Justice Charron in Beaudry, whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered.
In effect, the appellant is asking this Court to re-weigh the factors considered by the trial judge. There is no basis upon which to do so.
Trial Fairness
[65] The appellant says the judge should have excluded the complainant’s statement in the interests of trial fairness (Charter, s. 7). The concern for trial fairness is the focus of the necessity and reliability pre-conditions of the principled exception to the hearsay rule. As I mention above (at para. 20) the trial judge has a residual discretion to exclude the evidence which satisfies the principled exception where its probative value is outweighed by its prejudicial effect. As Charron, J. wrote in R. v. Khelawon, supra:
48 As indicated earlier, our adversary system is based on the assumption that sources of untrustworthiness or inaccuracy can best be brought to light under the test of cross‑examination. It is mainly because of the inability to put hearsay evidence to that test, that it is presumptively inadmissible. However, the constitutional right guaranteed under s. 7 of the Charter is not the right to confront or cross‑examine adverse witnesses in itself. The adversarial trial process, which includes cross‑examination, is but the means to achieve the end. Trial fairness, as a principle of fundamental justice, is the end that must be achieved. Trial fairness embraces more than the rights of the accused. While it undoubtedly includes the right to make full answer and defence, the fairness of the trial must also be assessed in the light of broader societal concerns: see R. v. Mills, [1999] 3 S.C.R. 668, at paras. 69‑76. In the context of an admissibility inquiry, society's interest in having the trial process arrive at the truth is one such concern.
49 The broader spectrum of interests encompassed in trial fairness is reflected in the twin principles of necessity and reliability. The criterion of necessity is founded on society's interest in getting at the truth. Because it is not always possible to meet the optimal test of contemporaneous cross‑examination, rather than simply losing the value of the evidence, it becomes necessary in the interests of justice to consider whether it should nonetheless be admitted in its hearsay form. The criterion of reliability is about ensuring the integrity of the trial process. The evidence, although needed, is not admissible unless it is sufficiently reliable to overcome the dangers arising from the difficulty of testing it. As we shall see, the reliability requirement will generally be met on the basis of two different grounds, neither of which excludes consideration of the other. In some cases, because of the circumstances in which it came about, the contents of the hearsay statement may be so reliable that contemporaneous cross‑examination of the declarant would add little if anything to the process. In other cases, the evidence may not be so cogent but the circumstances will allow for sufficient testing of evidence by means other than contemporaneous cross‑examination. In these circumstances, the admission of the evidence will rarely undermine trial fairness. However, because trial fairness may encompass factors beyond the strict inquiry into necessity and reliability, even if the two criteria are met, the trial judge has the discretion to exclude hearsay evidence where its probative value is outweighed by its prejudicial effect. (See also Khelawon, para. 3)
(Emphasis added)
[66] The appellant says:
105. The Appellant in the case‑at‑bar is maintaining that his constitutional right to trial fairness was infringed by the application of the principled approach to hearsay in the circumstances of this case where his conviction was founded on the unsworn, untested, poorly video‑taped evidence of the deceased complainant; and the Appellant's own exculpatory statement was used by the Crown to corroborate the complainant's statement, the critical evidence in the Crown's case . . . It is respectfully submitted that using the Appellant's exculpatory statement for purposes of corroboration in the circumstances of the case‑at‑bar had not been contemplated in the Khelawon decision. The Crown conceded this latter point during the admissibility voir dire:
[67] As I have already discussed, I am not persuaded that the judge used the appellant’s exculpatory statement as corroboration (see para. [42] above) for the purpose of threshold admissibility or improperly on the question of ultimate reliability (see para. [57] above).
[68] The probative value of the complainant’s statement is substantial in that it directly implicated the appellant in the commission of this crime. Without question its admission is against the accused’s interests and to that extent may be said to be “prejudicial”. (R. v. Collins, [1997] B.C.J. No. 1953 (Q.L.)(C.A.) at paras. 37 and 38). However, the “prejudicial effect” to be guarded against is not the fact that evidence may tend to result in conviction but the concern that evidence which is otherwise probative of a fact in issue may be misused by the trier of fact. For example, in a jury trial where the trier of fact may wrongly use the evidence to draw impermissible inferences. Here, the appellant has not identified any such risk arising from the admission of the complainant’s statement. Nor does the appellant identify any other impact of its admission to the fair trial of the accused. With this submission, the appellant is simply reasserting his arguments made in relation to the statement’s admissibility. The potential of the statement’s impact on the appellant’s fair trial interests was canvassed by the trial judge in determining that the statement met the test for threshold reliability. This submission is without merit.
[69] I would dismiss the appeal of conviction.
THE SENTENCE
[70] The judge found that a fit sentence in these circumstances was a period of three years incarceration. After giving the appellant two for one credit for four and one half months spent on remand, he imposed a net sentence of two years and three months. The appellant says the sentence is “excessive and unduly harsh”.
[71] Recently in R. v. L.M., 2008 SCC 31, the Supreme Court of Canada reaffirmed the high level of deference due to sentencing decisions. LeBel, J., wrote for the majority:
14 In its past decisions, this Court has established that appellate courts must show great deference in reviewing decisions of trial judges where appeals against sentence are concerned. An appellate court may not vary a sentence simply because it would have ordered a different one. The court must be "convinced it is not fit", that is, "that ... the sentence [is] clearly unreasonable" (R. v. Shropshire, [1995] 4 S.C.R. 227, at para. 46, quoted in R. v. McDonnell, [1997] 1 S.C.R. 948, at para. 15). This Court also made the following comment in R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 90:
... absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit.
. . .
15 Owing to the profoundly contextual nature of the sentencing process, in which the trier of fact has broad discretion, the standard of review to be applied by an appellate court is one based on deference. The sentencing judge has "served on the front lines of our criminal justice system" and possesses unique qualifications in terms of experience and the ability to assess the submissions of the Crown and the offender (M. (C.A.), at para. 91). In sum, in the case at bar, the Court of Appeal was required ‑ for practical reasons, since the trier of fact was in the best position to determine the appropriate sentence for L.M. ‑ to show deference to the sentence imposed by the trial judge.
[72] This deference is driven by the individualized and discretionary nature of the sentencing process. LeBel, J. continued:
17 Far from being an exact science or an inflexible predetermined procedure, sentencing is primarily a matter for the trial judge's competence and expertise. The trial judge enjoys considerable discretion because of the individualized nature of the process (s. 718.3 Cr. C.; R. v. Johnson, [2003] 2 S.C.R. 357, 2003 SCC 46, at para. 22; R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5, at para. 82). To arrive at an appropriate sentence in light of the complexity of the factors related to the nature of the offence and the personal characteristics of the offender, the judge must weigh the normative principles set out by Parliament in the Criminal Code:
‑ the objectives of denunciation, deterrence, separation of offenders from society, rehabilitation of offenders, and acknowledgement of and reparations for the harm they have done (s. 718 Cr. C.);
‑ the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s. 718.1 Cr. C.); and
‑ the principles that a sentence should be increased or reduced to account for aggravating or mitigating circumstances, that a sentence should be similar to other sentences imposed in similar circumstances, that the least restrictive sanctions should be identified and that available sanctions other than imprisonment should be considered (s. 718.2 Cr. C.).
[73] The Crown sought an incarcerative sentence of three and one half to four years. The defence advocated for a conditional sentence of less than two years to be served in the community.
[74] In fixing sentence the judge noted that, while he had declined to convict the appellant on the more serious charge of aggravated assault, the sexual assault was a serious one involving violence, physical and psychological injury to the complainant and confinement. He was aware that the appellant had faced hardship as a result of this offence, in that he was ostracized from the community where both he and the victim had resided. He also accepted that the appellant had the potential to be a productive member of society.
[75] The appellant’s lengthy prior record was of significance in fixing the sentence. He had fifty-five prior convictions, including two for sexual assault as well as other crimes of violence. He had received conditional sentences on each of the prior sexual assaults. The record included 13 breaches of an undertaking and 16 breaches of probation. The fact that he had breached a previous conditional sentence was also an important factor. The judge considered and distinguished the authorities cited by the defence, which purportedly supported a lesser sanction. It was and is the appellant’s submission that the injuries to the complainant were minor and that the psychological impact referred to in the victim impact statement presented by the rape counsellor who treated the complainant was overstated. This did not accord with the judge’s view of the evidence.
[76] The sentencing reasons do not reveal error in principle, the failure to consider relevant factors or the overemphasis of appropriate factors. In view of the nature of the assault and the highly aggravating factor of the appellant’s related prior record and his unsuccessful performance under prior conditional sentences, I am not persuaded that the incarcerative term imposed is demonstrably unfit.
[77] I would dismiss the sentence appeal.
Bateman, J.A.
Concurred in:
Roscoe, J.A.