Friday, October 24, 2014

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

R. v. Kanagalingam, 2014 ONCA 727:

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

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

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

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

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

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

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

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