PROVINCIAL COURT OF NOVA SCOTIA
Citation: R. v. Lunn, 2011 NSPC 73
Date: 20110418
Docket: 2039559
2039560
2039561
Registry: Sydney
Between:
Her Majesty the Queen
v.
Walter Morton Lunn
DECISION
Judge: The Honourable Judge Jean Whalen
Heard: in Sydney, Nova Scotia
Oral Decision: April 18, 2011
Charge: Section 5(1) Controlled Drugs and Substances Act
(Three counts)
Counsel: David Iannetti, Federal Prosecutor
William Burchell, Q.C., Defence Counsel
By the Court:
[1] This is my decision in R. v. Walter Morton Lunn. The Crown is seeking to have the summary occurrence report tendered as an exhibit and testified to by Constable Boone.
[2] As a result of an undercover operation called Nightrider, aimed at the street and mid-level drug dealers, a target list was prepared. An RCMP Officer was to engage in “opportunity purchases”.
[3] As a result of this operation Mr. Lunn was charged with three counts of trafficking pursuant to s.5(2) CDSA. On June 29th, 2009 the Defendant elected Provincial Court and the matter was set for trial on September 7th and 8th.
[4] On that trial date the Crown requested an adjournment because a material Crown witness was ill. The adjournment was granted and a new trial date was set for March 21, 2011 and on that date Constable Campbell testified. He is an RCMP officer here in Cape Breton, and prior to that worked for 11 years in street crime unit investigating matters ranging from street level to importation of drugs.
[5] On the dates in question he was involved with Operation Nightrider as an undercover officer and Constable Livingstone was his handler. He posed as a cab driver for two different companies.
[6] On April 15, 2009 at 12:15 p.m. he went to B & W Convenience Store owned by Mr. Lunn and spoke directly to him. His purpose was to buy drugs. The officer said he made reference to a male person from the previous day and he testified Mr. Lunn hesitated because he didn’t know him. So he left and returned at 2:15 with this male. Mr. Lunn saw him and said, “Okay there buddy, how many?” Constable Campbell replied, “I want 10.” Mr. Lunn dropped 10 pills into a bag and he paid $60.00. The word “TEC” was on those pills.
[7] Exhibit No. 1 was tendered by the Crown and contained a brown candy bag. There were nine pills still in the bag. The officer testified that the pills purchased were kept in his possession until 4:55 p.m. that same day. At that time the 10 pills were passed over to Constable Royal. Constable Campbell stated he had no other contact with the exhibit.
[8] Constable Campbell then testified on April 17th, 2009 at two p.m. he went to B & W Convenience Store and spoke to the Defendant Mr. Lunn. He asked to buy 20 Percocet and he stated the Defendant went, “into the backroom with a bag.” He came back and handed him a bag. He took a quick look inside and there appeared to be 20 pills. He paid Mr. Lunn $120.00.
[9] Exhibit No. 2 was tendered. It was a sandwich bag containing a brown bag with the officer’s initials and badge number. The date on it was April 18th, at 3:45 a.m. The bag now contains 19 Percocet. It was turned over to Constable Livingstone.
[10] On April 20th Constable Campbell testified he went to B & W Convenience Store at 1:20 p.m. and he told the Defendant he wanted 20 Percs. Mr. Lunn went into the backroom with the bag and he returned and gave him a bag and there appeared to be 20 Percs in the bag. He gave the Defendant $120.00.
[11] Exhibit No. 3 was tendered by the Crown. This was bagged on April 21st 2009 at one a.m. Constable Campbell counted the pills before logging and there were only 19 pills. He was one short of his purchase that date.
[12] There are now 18 pills today or the date of trial and each pill has the number “0636" on it. These pills were in Constable Campbell’s briefcase and then at 17 minutes after one, on Wednesday they were turned over to the custody of Constable Livingstone.
[13] On cross examination Constable Campbell stated regarding Count No. 2, on April 15th, he returned to the store with Willy Power and he purchased pills. He didn’t prepare the evidence bag. The case number refers to all charges for the Defendant and the pills appear to be the same Percs bought on the 17th and 20th. The bag given to Constable Livingstone, that is the candy bag with pills on April 15th, was not, “ID’d by me in anyway.”
[14] He turned over four exhibits from four different buys and the pills he bought from Mr. Lunn were the only Percocets. Prior to these buys being turned over they were on his person, he said, separated from one another. He’s not sure exactly what pocket etc. but he testified he knows enough to keep each buy separated. He agreed the pills in Exhibit No. 1 were not marked by him in anyway and after the buy from Mr. Lunn he did one coke buy.
[15] Regarding the April 17th purchase from the Defendant, the officer said he had those pills for six days before he turned them over to Constable Livingstone, on the 22nd at 1:15 p.m. He doesn’t believe he bought Percocet from anyone else.
[16] Now Constable Campbell’s practice is, after each buy, to return to the address, put the pills in a sandwich bag and put the sandwich bag in his briefcase, then he continues to make buys.
[17] Between the 17th and 22nd he purchased Ecstasy which was turned over the day it was purchased. The hash oil and Percocet was purchased from Mr. Lunn on the 20th. The officer kept all these purchases in the same manner, that is he put them in a ziplock sandwich bag and placed them in his briefcase.
[18] On April 20th he testified Willy Power was with him but he didn’t go in the store. He does not recall showing the pills to Power because as he said, “Power didn’t get along with Mr. Lunn.”
[19] The hash oil bought on the 20th was turned over on the 22nd at 1:20 p.m., along with the Percs he bought from Mr. Lunn on the 20th. Constable Campbell testified on redirect there was no mixup or manipulation by him of drugs purchased and then turned over to the other officers.
[20] Constable Greg Livingstone testified he has been a police officer for 32 years and in the Drug Section for the last three. He was involved with the Operation Nightrider and was Constable Campbell’s handler.
[21] Exhibit No. 1 refers to the property record number 1170, and this is filed by Constable Livingstone, April 15, 2009, 10 Percocets. The items were inspected by him and logged and put in an evidence bag and turned over to Constable Royal who would have secured it in an exhibit locker until sent for analysis. When asked by counsel why there is an evidence bag inside another evidence bag, he stated because, “he used his own evidence bags because of the system he uses.”
[22] Exhibit No. 2 refers to police number 11712 and this was received from Constable Campbell on the 17th of April 2009, contained a sandwich bag which had Constable Campbell’s brown bag and 20 Percs. He then turned it over to Constable Royal.
[23] Exhibit No. 3 refers to the police number 11713 which contains 19 Percs which were received from Constable Campbell on the 20th of April, 2009. There was a brown bag and there were pills in a sandwich bag. Constable Livingstone filled out the log, his evidence bag and then turned it over to Constable Royal. He testified Constable Boone brought all the exhibits to court.
[24] In cross examination he testified the property record he was referring to included Exhibits 86-11700 from Constable Campbell. He received the pills from the April 15th transaction at 6:42 p.m. from Constable Campbell. He has no notes on when he gave the pills to Constable Royal but he would say, “within minutes.”
[25] He agreed the property report is used to keep continuity of evidence but it says nothing about him passing exhibits to Constable Royal. He stated those notes would have been made by Constable Royal. Regarding Exhibit No. 2, police number 11712, he agrees he got it from Constable Campbell on the 22nd but there is nothing in the property record to indicate what he did with it or when he turned it over to Constable Royal. And Exhibit No. 3, police number 11713 he testified he couldn’t recall if it involved Willy Power, but he did know that the 19 Percs that were bought on the 20th and received by him on the 22nd. He agreed the property record does not tell what happened to the drugs after that.
[26] On redirect Constable Livingstone testified the drugs were in his possession at all times until turned over to Constable Royal.
[27] The Crown next called Constable Boone to testify. Counsel wanted the officer to refer to a report prepared by Constable Royal regarding the exhibits entered by the Crown. However, Defence Counsel objected on the grounds that it would be hearsay. The trial was adjourned to give counsel an opportunity to file written briefs.
[28] The Crown is attempting to tender the summary occurrence report prepared by Constable Mark Royal as proof of the continuity of the drug exhibits. The reason is because Constable Royal is gravely ill and is unable to introduce the document in question or testify. The Crown argues this summary occurrence report, although hearsay, is admissible based on the principal approach to hearsay as discussed in R. v. Khan, and R. v. Smith. Crown Counsel submits the test of necessity is met because of Constable Royal’s medical condition and the test of reliability is met because the summary occurrence report is a routine document filled out as part of a drug investigation to track the continuity of the drug exhibits.
[29] The Defence argues that the Crown has not produced any real evidence of the nature and severity of Constable Royal’s illness, there is no presumption of necessity and, two, with respect to the threshold reliability, the Crown has not proven it to be true and that the document is routine and made contemporaneously with events.
[30] The issue is whether or not this supplementary occurrence report can be admitted into evidence for the truth of its contents, pursuant to the principal approach to the hearsay rule.
[31] If a statement constitutes hearsay, it is presumptively inadmissible unless it falls within a recognized traditional exception to the rule or unless it is shown to meet the criteria of necessity and reliability under the principal approach adopted by the Supreme Court of Canada. The onus lies on the proponent of the evidence to establish these criteria on a balance of probability. The leading case that began the development of the principal approach is R. v. Khan [1990] 2 S.C.R. 531.
[32] In the Law of Evidence in Canada written by Sopinka, Lederman and Bryant, 3rd Edition at p. 247 paras. 6.63 to 6.68:
6.63 In R. v. Khan, the Supreme Court of Canada recognized the need for more flexibility in the reception of hearsay evidence of children who may have been the victims of sexual abuse. Rather than trying to fit this evidence artificially into the doctrine of spontaneous declarations in order to achieve admissibility, the Court used a principled approach to the hearsay rule to accommodate this evidence.
6.64 The criteria for admissibility are necessity and reliability of the hearsay statements, together with fairness to the accused. It was in Ares v. Venner that the Court first referred to the twin requirements of necessity and reliability as the basis for judicially created exceptions to the hearsay rule, and the Court returned to that theme in Khan. Necessity, according to the Court, means “reasonably necessary”. If the child’s evidence was not otherwise admissible, that might make the hearsay necessary. The Court also alluded to the possibility that it might be too traumatic an experience for the child to give testimony in court. If so, that might satisfy the requirement of necessity. In Khan, the child’s hearsay statements to her mother were necessary as evidence because the trial judge refused to admit her viva voce unsworn testimony.
6.65 In terms of reliability, the trial judge should have regard to the timing of the statement, the demeanour, personality, intelligence and understanding of the child and the absence of any reason to expect fabrication. In Khan, reliability came from the fact that the child had no motive to fabricate her story, which came forth naturally and without prompting. Furthermore, it was held that such a young child could not be expected to have knowledge of the sexual acts in question and was, therefore, unlikely to have concocted such a story.
6.66 The Court did advise caution in receiving such evidence since it was untested by cross examination. The Court was careful to say that, although in some cases a trial judge may insist on cross examination of the child as a condition to admissibility, generally, fairness to the accused can be dealt with by appropriate submissions as to the weight to be given to such evidence and the quality of any corroborating evidence.
6.67 The Court also stressed that this decision “does not make out-of-court statements by children generally admissible; in particular the requirement of necessity will probably mean that in most cases children will still be called to give viva voce evidence.”
6.68 The Supreme Court of Canada, in short order, in R. v. Smith, R. v. Finta, R. v. B.(K.G.) and R. v. U. (F.J.), removed any doubt that what it said in Khan was limited to its particular fact situation. The Court, in effect, created a general inclusionary exception to the hearsay rule. So began the development of the “principled approach” to hearsay.
[33] At p. 255, paras. 6.88 to 6.90, deals with necessity and reliability:
6.88 In R. v. Khelawon, Justice Charron stated that the two requirements of necessity and reliability seek to achieve trial fairness which embraces not only the rights of the accused to make full answer in defence, but society’s interest in having the trial process arrive at the truth. The criterion of necessity is founded on society’s interest in getting at the truth. When the optimal test of contemporaneous cross examination is not possible, rather than simply losing the value of the evidence, it becomes necessary in the interest 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. Although needed, the evidence will not be received unless it is sufficiently reliable to overcome the dangers arising from the difficulty in testing it. In some cases, the reliability requirement may be met because the very circumstances in which the statement came about provides sufficient comfort in its truth and accuracy. In other cases, the reliability requirement may be met, not because the circumstances under which the hearsay statement was made make it more likely to be accurate, but because there were present at the time adequate substitutes (such as the declarant being subjected to cross examination or under oath or video or audiotaped) for the traditional safeguards relied upon to test the evidence at trial.
6.89 Justice McLachlin, in R. v. Rockey, stated:
...a trial judge on an application to admit hearsay evidence pursuant to Khan should formally consider and rule on whether the requirements of necessity and reliability are met. Hearsay evidence is not admissible unless these requirements are present. It should not lightly be assumed that they are present, even where the statements are those of a young child. There is no presumption of necessity; it must always be considered on the circumstances of a particular case.
6.90 The trial judge must determine on a voir dire that the indicia of necessity and reliability have been established on a balance of probabilities before admitting the statement.
[34] At p. 257, paras 6.96, 6.97 and 6.108 states:
6.96 Necessity relates to relevance and availability of evidence. There are various degrees of necessity, ranging from the fact that the declarant is deceased, or ill, or incompetent to testify, or otherwise unavailable, to the fact that, although he or she is available to testify, little would be gained by the declarant’s attendance in court.
6.97 With respect to unavailability, there is a high degree of necessity and failure to introduce the statement may mean the total loss of the evidence. In Khan, the child could not testify and her earlier statements to her mother were considered necessary. In Smith, the declarant was dead and her earlier statements were therefore necessary.
6.108 “Necessity”, therefore, does not mean absolute necessity. It may be that a court will demand a higher standard of reliability in situations where the nature of the necessity is not so extreme.
[35] Page 261, paras. 6.109, 6.112, 6.114 and 6.117 states:
6.109 Chief Justice Lamer in Smith said that one must look to the circumstances under which the statement in question was made:
If a statement sought to be adduced by way of hearsay evidence is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken, the hearsay evidence may be said to be “reliable”...
Accordingly, it is not essential that the statement be absolutely reliable. Substantial reliability will suffice.
6.112 The trial judge is engaged in making a decision about admissibility and is enquiring only as to threshold reliability as opposed to ultimate reliability. Whether the hearsay statement will or will not be ultimately relied upon in deciding the merits of the case is a matter for the trier of fact, whether judge or jury, to determine at the conclusion of the trial based on consideration of the hearsay statement in the context of the entirety of the evidence.
6.114 In B.(K.G.), Lamer C.J.C. elaborated further on other factors of reliability in the context of considering the admissibility of a prior inconsistent statement:
Therefore, the requirement of reliability will be satisfied when the circumstances in which the prior statement was made provide sufficient guarantees of its trustworthiness with respect to the two hearsay dangers a reformed rule can realistically address: if (I) the statement is made under oath or solemn affirmation following a warning as to the existence of sanctions and the significance of the oath or affirmation, (ii) the statement is videotaped in its entirety, and (iii) the opposing party, whether the Crown or the defence, has a full opportunity to cross examine the witness respecting the statement, there will be sufficient circumstantial guarantees of reliability to allow the jury to make substantive use of the statement. Alternatively, other circumstantial guarantees of reliability may suffice to render such statements substantively admissible, provided that the judge is satisfied that the circumstances provide adequate assurances of reliability in place of those which the hearsay rule traditionally requires.
6.117 The presence or absence of a motive to lie may play a critical role in assessing threshold reliability. It is only one factor and the real focus must lie on the particular dangers arising from the hearsay nature of the evidence. Where it can be demonstrated through other evidence that the declarant had every reason to be truthful, that would go to show that the statement is inherently reliable. On the other hand, where evidence shows that the declarant had a motive to lie, it is obvious that the statement cannot be trusted. The motive to lie should be demonstrative and not merely subjective. In those grey areas, where there is no evidence one way or the other, a court cannot draw the reference that there was no evidence of a motive to fabricate. In R. v. Couture the majority of the Supreme Court held that the absence of circumstances (such as “no coercion”, no “preponderance of leading questions”, no “investigatory conduct on the part of the police” and “no motive to lie”) that would detract from an otherwise trustworthy statement did not establish threshold reliability.
[36] Page 265, discusses the distinction between threshold reliability and ultimate reliability, paras 6.125, 6.126, 6.127, 6.132 and 6.132.1 state:
6.125 As gatekeeper, the trial judge decides the issue of admissibility. The question of whether and to what extent the hearsay statement will be ultimately relied on is for the trier of fact’s determination, whether it be a jury or judge alone, in the context of the totality of evidence.
6.126 Thus, it is for the trial judge on a voir dire to decide only if the hearsay is sufficiently reliable to justify admissibility and if so, leave it to the trier of fact to weigh or assess its true value.
6.127 The onus rests on the party seeking the admission of hearsay to show that the circumstances surrounding the making of the statement are sufficiently supportive of reliability to permit its receipt, despite the absence of the opportunity to cross examine the declarant. There is no evidential onus on the party resisting the admission of hearsay to establish that the statement was made in unreliable circumstances.
6.132 Khelawon says courts should take a flexible approach in identifying the relevant factors, i.e. consider whether there is any specific factor that adequately overcomes the hearsay dangers in play that would show either (1) there is little concern about the truthfulness of the statement because of the circumstances under which it was made; or (2) its truth or accuracy can nonetheless be sufficiently tested by means or processes other than contemporaneous cross examination.
6.132.1 The use of corroborative evidence should be directed to the reliability of the hearsay. Certain items of evidence can take on a corroborative character and be supportive of the Crown’s theory when considered in the context of the evidence as a whole. Such evidence relates to the merits of the case rather than to the limited focus of the voir dire in assessing the trustworthiness of the statement and is properly left to the ultimate trier of fact.
[37] The Trial Judge’s Residual Discretion is found on p.272, para. 6.154 reads as follows:
6.154 Even if a hearsay statement satisfies the conditions of admissibility under the reformed approach, a judge retains a residual discretion to exclude it where its probative value is slight and undue prejudice might result to the accused and the trial process. This discretion is in keeping with the constitutional guarantee under s.11(d) of the Canadian Charter of Rights and Freedoms of a fair trial.
[38] Page 307 discusses admissibility under the principal approach at paras. 6.251, 6.252, 6.253, 6.254 and 6.255 states:
6.251 In the following cases, the Court questioned the admissibility of the records in issue under either the traditional common law exception or the statutory business records provisions, but found an avenue of admissibility through the principled approach.
6.252 In R. v Wilcox, the Court held that it was questionable whether the fish book in issue was admissible under s.30 of the Canada Evidence Act, which required that the record be “made in the usual and ordinary course of business”. The Court raised the question of whether a private record, kept against the employer’s instructions, but made and relied on by the employee in the course of carrying out his duties, qualified as a document made in the usual and ordinary course of business.
6.253 On the one hand, it could be said that a document that the owner of the business did not want created cannot be a document made in the ordinary course of the owner’s business. On the other hand, it could equally be argued that the fact that the document was made and relied on for the purpose of carrying on the business is sufficient to qualify it as a document made in the ordinary course of business.
6.254 The Nova Scotia Court of Appeal felt that it was a very close call as to whether the fish book is admissible under s.30 of the Canada Evidence Act. The Court stated that it could be said to have been made in the ordinary course of business on a reasonable interpretation of the section and particularly in light of the omission of the “business routine” branch of the test contained in several of the provincial Evidence Acts. On the other hand, the Court was concerned that to interpret the usual course of business requirement so as to admit the fish book would extend the ambit of the section very broadly. Accordingly, where admissibility under the statutory exception was debatable, the Court felt it best to turn to the principled approach to determine admissibility.
6.255 If records are not admissible under the traditional common law exception or under statute, they still may be admitted if the principled approach is satisfied. In R. v Lemay, prints of cheques made from microfiche, although not admissible under s. 31 of the Canada Evidence Act (because of the outsourcing of cheques) nor under s.29 of the Act (because not in Bank’s custody nor the type of document kept in the Bank) were nevertheless admissible because the tests of necessity and reliability were met.
[39] Mr. Iannetti argued that it is necessary because the officer is ill and undergoing treatment. He’s not able to testify and it is not reasonable to adjourn due to uncertainty and it is an important part of the Crown’s case. He also says reliability is met because the summary occurrence report is a routine document filled out as part of the drug investigation completed by Constable Royal contemporaneously with events and movements that were documented. There is no evidence of ulterior motive. The context each drug seizure is consistent with the ultimate finding of the drug analysis and even though Constable Royal is not available for cross examination, other officers who were involved with the investigation are. As well, Mr. Iannetti suggests that other officers could be called in the Drug Section to establish any problems with the seizure and or continuity of the exhibits.
[40] Defence argues with respect to the witness, the illness is not a matter of record, the first trial was adjourned because of this illness. It was not disclosed at pretrial that this witness couldn’t attend and there have been no alternatives to taking this officer’s evidence.
[41] Mr. Burchell argues that Defence does not know that this document is routine or made contemporaneously. He says we need testimonial explanation of what the entries mean, and that the Crown has the burden. As well, the Defence was given no notice of this summary occurrence report and also questions whether or not this is a s. 30 business record and should come in under that.
[42] I agree with the Court of 2ppeal in R. v. Wilcox that before addressing admissibility and the principled approach the analyst should first address the questions of whether the document is admissible under statutory or traditional hearsay exceptions. In that case,
[43] R. v. Wilcox, [2001] 192 N.S.R. (2d) 159, at paras. 45, 46, 47, and 48 states as follows:
45 First, it has become the practice in these hearsay cases to first address admissibility under the traditional rules of evidence. As recently as in R. v. Starr (2000), 147 C.C.C.(3d) 449 (S.C.C.), this approach was followed by all members of the Court. It has the practical advantage of precluding resort to the broader but less finite considerations relevant to the principled approach if traditional rules support admissibility. This is particularly advantageous in a case like this one (and unlike Starr) in which there is no argument that the traditional rules need to be narrowed to make them conform to the prevailing principles of necessity and reliability.
46 Second, as Starr makes clear, an important function of traditional hearsay exceptions is to elucidate the factors which are relevant to the determination of whether to admit a particular type of hearsay in a particular factual context. As Iacobucci J., said, for the majority, in Starr at p. 531, all hearsay exceptions "should be seen simply as concrete examples of the practical application of the purpose and principles of the hearsay rule in a particular context." Thus, analysis of admissibility under traditional exceptions may not only make resort to the principled approach unnecessary, but will assist with the application of the principled approach should that become necessary.
47 Third, it seems to me that a further function of traditional hearsay exceptions is to promote predictability in the law and that this is especially desirable with respect to documentary evidence. Moreover, the law relating to documentary evidence has been significantly reformed, both by statute and judicial decision with the result that one would expect a more limited scope for the application of the principled approach here as compared to many other areas of hearsay evidence.
48 Finally, the admissibility of the document under traditional rules may have a bearing on the necessity criterion under the principled analysis. For example, if a document would have been admissible had a notice required by statute been given, it might be argued that failure to give notice does not constitute necessity within the meaning of the principled approach.
[44] Both counsel talk about the document and have copies of the document, but the underlying problem for the Court and ultimately the Crown, is that the document was not tendered as an exhibit and no evidence was led to support the Crown’s position under any of the three possible scenarios for admission.
[45] It is the Crown’s burden and not the Defendant’s to prove admissibility. I cannot rely on the submissions of counsel, there must be some record consisting of either documentary evidence, viva voice evidence etc. for the Court to examine and ultimately determine the issue.
[46] That does not exist, and therefore, I am left with no choice but to deny and exclude the summary occurrence report from being admitted as part of the trial proper and I prohibit Constable Boone from speaking to the document for the truth of its contents.
[47] Mr. Iannetti called no other witnesses and tendered the Crown’s exhibits.
[48] Mr. Iannetti requested an adjournment to file submissions on the issue of “holding out.”
[49] On April 29, 2011, I found Mr. Lunn not guilty on the trafficking charges from April 15, 17, 20, 2009. The following are my reasons.
[50] The Crown has the burden at all times to prove its case beyond a reasonable doubt with respect to every element of the offence.
[51] With respect to these charges, one of the elements is to prove the substances bought from Mr. Lunn were cocaine and percocets as set out in the information. As in most drug cases, various items are seized by police and the chain of continuity can become an issue.
[52] That was the issue in this case. Cst. Mark Royal was the last link in the chain of continuity; however, he was unable to testify because he was off work due to illness.
[53] As a result, the Crown could not prove the substances bought from Mr. Lunn were the “drugs” set out in three counts in the information.
[54] Therefore, Mr. Lunn was subsequently found not guilty of the trafficking charges.
[55] The Provincial Crown offered no evidence on the s. 145 charges and they were dismissed for want of prosecution.
J.