This week’s top three summaries: R v Boucher, 2024 ABKB 707: #principled exception, R v Boucher, 2024 ABKB 722: s.8: res gestae & #silent adoption, and R v Vandal-Lauman, 2024 ABKB 667: conditional #sentence
R v Boucher, 2024 ABKB 707
[November 5, 2024] The Principled Exception to Hearsay: the Unsavoury Witness [Justice Lisa A. Silver]
AUTHOR’S NOTE: This case is a textbook application of the caution outlined in R v Bradshaw regarding the admission of hearsay evidence, particularly when the statements come from unsavoury witnesses with credibility issues. Justice Silver’s decision reinforces the principle that the threshold reliability of such statements must be rigorously assessed before they can be admitted under the principled exception to hearsay.
Key Takeaways:
- Threshold Reliability Test:
- As established in R v Bradshaw, hearsay evidence can only be admitted if it is both necessitated by the circumstances (e.g., the witness is unavailable) and reliable enough to overcome the inherent risks of admitting evidence that cannot be cross-examined.
- In this case, the witness’s refusal to testify made the necessity requirement clear. However, the lack of adequate corroboration and the significant credibility concerns rendered the statement unreliable.
- Credibility Concerns with Unsavoury Witnesses:
- The co-accused in this case exhibited multiple red flags undermining his credibility, including:
- Attempts to negotiate personal benefits with police in exchange for incriminating information.
- A clear self-interest in minimizing his own culpability by shifting blame to others.
- Inconsistencies in his narrative, including a progression of statements where he initially he claimed complete innocence and later admitted lesser forms of culpability.
- The co-accused in this case exhibited multiple red flags undermining his credibility, including:
- Corroboration as a Safeguard:
- For hearsay evidence to be admitted, it often requires corroboration of its material aspects.
- Here, the Crown failed to provide corroboration linking anyone besides the witness to the murder. Without independent evidence to support the allegations in the statement, it could not meet the reliability standard required for admissibility.
- Protecting the Integrity of the Trial:
- Justice Silver’s exclusion of the evidence illustrates the importance of protecting the integrity of criminal trials. Allowing a potentially self-serving and uncorroborated statement to be admitted would risk unfairly prejudicing the accused and undermining the fairness of the trial.
Practical Implications for Counsel:
- Challenging Hearsay Evidence:
- Defense counsel should be vigilant in challenging hearsay evidence from co-accused or unsavoury witnesses. The credibility of such witnesses and the corroboration of their statements must be thoroughly examined.
- Bradshaw Guidance on Corroboration:
- As per Bradshaw, corroboration must independently confirm the material facts in the statement. Counsel should argue that reliance on hearsay evidence without this safeguard could result in wrongful convictions.
- Strategic Use of Inconsistencies:
- Highlighting the progression of inconsistent statements from the declarant, as was done here, can effectively undermine the reliability of the evidence.
Broader Lessons:
This case underscores the importance of ensuring that hearsay evidence—especially from compromised witnesses—is subjected to the highest level of scrutiny. The principled exception to hearsay exists to allow necessary and reliable evidence to be admitted, but it is not a free pass for questionable statements. By applying R v Bradshaw rigorously, courts ensure that the risks associated with admitting hearsay are minimized, preserving the fairness and integrity of the trial process.
Introduction and Background
[1] The Crown seeks to admit the statement Justin Urban gave to the police on February 21 and 22 of 2022. Justin Urban was initially charged, together with Mr. Abraham, Mr. Boucher and Mr. Sims of the first-degree murder of Chad Kowalchuk. Mr. Urban ultimately entered a plea of guilty to second-degree murder.
[2] Mr. Urban was required to testify on behalf of the Crown. Mr. Urban refused to do so and continued to do so even after he was warned of the seriousness of his refusal and the serious consequences of doing so. Mr. Urban, who had the benefit of legal advice, was cited for contempt of court. His contempt hearing was adjourned until after the trial.
[3] Because Mr. Urban’s evidence is not available for trial, the Crown seeks to admit Mr. Urban’s hearsay statement to the police under the principled approach to hearsay.
[4] For reasons to follow the application is dismissed.
Governing Principles
[5] Hearsay is a category of presumptively inadmissible evidence: R v Baldree, 2013 SCC 35, [2013] 2 SCR 520 at para 2. The rule attaches to statements made by an out of court declarant proffered as evidence in court for the truth of its content: R v Khelawon, 2006 SCC 57, [2006] 2 SCR 787 at para 35 [Khelawon]. The reason for the rule is found in the precepts and safeguards of our adversarial system: R v KGB, 1993 CanLII 116(SCC), [1993] 1 SCR 740 at pp 763-764 [KGB]. This system is based on witnesses who testify to their assertions before the trier of fact. Cross examination is the primary technique used at trial to test the truthfulness, reliability, accuracy and integrity of the assertions made by the witness. The trier of fact observes and listens to the witness as they are questioned to assist them in assessing the witness’s evidence.
[6] The primary danger in admitting hearsay evidence is that the veracity of the witness’s assertions cannot be tested through the adversarial process: KGB at pp 763-764. Without cross examination, testimonial qualities such as the declarant’s perception, memory, narration, sincerity, and demeanour are not adequately explored, if at all, before the trier of fact: Re Truscott, 2007 ONCA 575 at para 701.
[7] In those instances, trial fairness is impacted because a trier of fact could accept the truthfulness of untested evidence at its face value. The dangers of introducing unreliable hearsay are underlined by Justice Iacobucci’s comment in theStarr decision that in those circumstances, trial fairness would be compromised and “raise the sceptre of wrongful convictions”: R v Starr, 2000 SCC 40, [2000] 2 SCR 144 at para 200. In short, hearsay evidence is incompatible with our adversarial system and the evidentiary safeguards we have in place to ensure a fair trial.
[9] Traditionally, the numerous exceptions to the hearsay rule developed water-tight categories of admissibility with rigid and unforgiving pre-conditions for admissibility. In the 1990s the Supreme Court augmented this formalistic approach with a more flexible modern one. This approach is now known as the principled approach to the admissibility of hearsay evidence: see e.g., R v Schneider, 2022 SCC 34 at para 50 [Schneider]; KGB at p 763; Geffen v Goodman Estate, 1991 CanLII 69 (SCC),[1991] 2 SCR 353 at p 387; R v Khan, 1990 CanLII 77 (SCC), [1990] 2 SCR 531 at p 540 [Khan].
[10] The principled approach is also based on the dual requirements for necessity and reliability but not fixed to the categorical and formalistic traditional exceptions: Schneider at para 50. The meaning given to necessity and reliability in the principled approach is more responsive to the specific hearsay dangers engaged in the admissibility of the evidence. The principled approach is focused on the dangers of admitting hearsay and whether those dangers can be overcome to permit the trier of fact to adequately and effectively evaluate the hearsay evidence at trial: Khelawon at para 61.
Necessity
[11] The necessity requirement expressed in the traditional exceptions tend to focus on the unavailability of the witness to testify due to illness or death while the principled approach focuses more on the unavailability of necessary evidence at trial. For example, under the principled approach the recanting witness is available to testify but the necessity requirement is fulfilled because the witness is effectively holding their evidence “hostage” making it unavailable at trial: KGB at p 799.
[12] In those circumstances, the party introducing the prior statement of the witness cannot otherwise obtain evidence of equal quality from another source: R v Hawkins, 1996 CanLII 154 (SCC), [1996] 3 SCR 1043 at para 71; KGB at p 796. Trial fairness and the truth-seeking function of the trial would be severely impacted without the admission of the hearsay evidence. Under the principled exception, necessity is flexible enough to respond to emerging situations: R v Parrott, 2001 SCC 3, [2001] 1 SCR 178 at para 3; KBG at p 796.
[13] I find that the necessity requirement of Mr. Urban’s hearsay statement is fulfilled. Mr. Urban has refused to testify thereby holding his evidence “hostage.” Moreover, there is no evidence so far in the Crown’s case arising from a co-accused’s admission that is admissible against all of Mr. Boucher, Mr. Abraham, and Mr. Sims. Mr. Urban, if he testified, would provide evidence that could be used in assessing the guilt or innocence of all of Mr. Boucher, Mr. Abraham, and Mr. Sims. I find, therefore, there is no other way for the Crown to obtain evidence of the same quality. Threshold Reliability
[14] The reliability requirement in the principled approach is aligned to the dangers of admitting hearsay and the principles underlying evidentiary rules. Truth seeking, trial fairness, and integrity of the justice system drive the reliability analysis. The overarching determination in the reliability analysis is whether the statement is “so sufficiently reliable that contemporaneous cross-examination of the declarant would add little if anything to the process”: Khelawon at para 49.
[15] In assessing reliability, it is vitally important that I stay focused on the threshold issue of whether Mr. Urban’s statement is sufficiently reliable to overcome the specific hearsay dangers from the out of court statement made by Mr. Urban: R v Bradshaw, 2017 SCC 35, [2017] 1 SCR 865 at para 26 [Bradshaw]…
[16] [There are two overlapping aspects of reliability that can work in tandem to overcome the hearsay dangers engaged: procedural reliability and substantive reliability: R v Furey, 2022 SCC 52 at para 3; Bradshaw at para 27. Generally, procedural reliability focuses on whether there are adequate substitutes for testing or evaluating the hearsay evidence: Bradshaw at para 28. Substantive reliability is established where the hearsay evidence is inherently trustworthy: R v Charles, 2024 SCC 29 at para 47 [Charles]; Bradshaw at para 30.
Procedural Reliability
[18] Procedural reliability addresses the hearsay dangers from the lack of presence of the declarant to give sworn evidence in the courtroom while subject to cross examination: Charles at para 46. Procedural reliability seeks substitutes for the trial process that can respond to those hearsay dangers: Khelawon at para 63. These substitutes are tools to assist the trier of fact to assess the veracity of the statement: Charles at para 46.
[19] To determine whether there are such tools, the court can consider four questions: see David Paciocco, Palma Paciocco and Lee Stuesser, Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020) at p 170. I will set out each question and respond to the question considering the facts of this case.
[20] First, was the maker under oath at the time the statement was made? Mr. Urban’s statement was made to a police officer investigating Mr. Urban for three charges arising from the commission of the offence that being murder, arson, and possession of stolen property. He was also in custody because he violated his parole. Mr. Urban was not under oath at the time he gave his statement to the investigating detective.
[21] The Crown argued that the way Mr. Urban was questioned by the detective enhanced the veracity of the statement. Specifically, the Crown points to the final passages in the statement where the detective summarizes Mr. Urban’s final position and asks Mr. Urban to confirm his statement. Although the detective advises Mr. Urban, he can correct the detective’s comments as she does this, in my view this confirmatory passage is not a substitute for sworn evidence. There is nothing in this confirmatory passage that brings home to Mr. Urban the importance of telling the truth or the serious consequences of lying in this statement.
[22] To be sure, Mr. Urban was cautioned and warned that his evidence could be used at trial against him. In my view, this warning is all about Mr. Urban and what the evidence can say about his involvement and little about what his statement would say about others. Because the warning is connected and directed to Mr. Urban’s jeopardy and not the jeopardy of others, Mr. Urban had every reason to minimize his involvement knowing, as the detective told him, that the investigation was looking for people who were involved other than Mr. Urban.
[23] There is also no binding of Mr. Urban’s conscious to tell the truth. In fact, Mr. Urban lied while giving the statement. In the first half of the interview, before Mr. Urban retired for some sleep, he portrayed himself as an innocent victim of a home invasion in which he was utterly uninvolved. This position changed over time but in the context of Mr. Urban negotiating for advantages and benefits from the detective. Moreover, there were no consequences for Mr. Urban’s falsehoods. In fact, Mr. Urban was not arrested for any offence arising from the murder including the possession of Mr. Kowalchuk’s stolen vehicle.
[24] Second, was the making of the statement audio or video recorded? Mr. Urban’s statement and interview with the detective was audio and video recorded. The recording provides an accurate account of the statement…
[25] …However, this alone is an inadequate substitute for cross examination of Mr. Urban at trial, which could connect Mr. Urban’s conduct and questions to other evidence arising at trial such as Ms. Cooley’s evidence. In short, cross examination would make connections that are not self-evident from the recording alone.
[26] Third, at the time of the giving of the statement, was the maker subject to cross examination? Mr. Urban was not subject to cross examination by opposing counsel. The detective’s form of questioning, peppered with the detective’s constant urging for Mr. Urban to give the investigator names of other people involved in the offence, is not a substitute for a vigorous cross examination at trial by defence counsel. Nor is it a substitute for a skillful direct examination and re-examination by the Crown. The purpose of the police interview to further their investigation and line of inquiries is not the same as the purpose of cross examination at trial. Cross examination at trial provides the jury with the tools they need to adequately and fairly assess the value and weight of Mr. Urban’s evidence. It enhances the truth-seeking function. [Emphasis by PJM]
[27] Fourth and final question, is the person now available for cross examination in court on the making of the out of court statement? Mr. Urban refused to testify and is not available for cross examination in court before the jury.
[28] I recognize that I should not view these four questions as rigid siloed categories of inquiries. Rather, these four questions highlight the concerns raised by the admission of hearsay evidence at trial. Together these four lines of inquiry guide the determination of whether the jury has the tools needed to assess Mr. Urban’s statement without the protections afforded by the trial process.
[29] In considering all these inquiries, I find the circumstances in which the statement was given cannot provide a substitute for the trial process that would respond to the hearsay dangers invoked by Mr. Urban’s statement to the police. Mr. Urban did not promise to tell the truth and in fact did not tell the truth based on his own accounts given during the interview. Mr. Urban was not subject to rigorous cross examination directed towards his testimonial qualities. Rather, he was encouraged to “name names” and was given a wide berth to do so. Moreover, Mr. Urban refused to be subject to examination under oath in court. There are no procedural tools available for the jury to rationally evaluate the truthfulness, accuracy, reliability, and integrity of Mr. Urban’s assertions in his statement to the police: Charles at para 46.
Substantive Reliability
[31] The focus of substantive reliability is on the trustworthiness of the hearsay evidence. This assessment requires the trial judge to consider both the circumstances in which the hearsay statement was made and the evidence corroborating or conflicting with the statement: Charles at para 47; Bradshaw at para 30; Khelawon at paras 4, 62 94-100; R v Blackman at para 55 [Blackman].
[32] Substantive reliability is shown when the hearsay evidence is so reliable it is “unlikely to change under cross-examination” and when the “only likely explanation is that the hearsay statement is true”: Charles at para 47; Bradshaw at para 31. The burden is on the Crown to show this on a balance of probabilities.
[33] Although reliability does not need to be established with absolute certainty, the standard is high: Charles at para 47.
Do the circumstances surrounding the making of the statement establish the inherent trustworthiness of Mr. Urban’s statement?
[35] I find that the circumstances surrounding the making of Mr. Urban’s statement fails to show that the statement is sufficiently reliable to overcome the specific hearsay dangers arising from his out of court statement. Specifically, the surrounding circumstances of the statement, peculiar to Mr. Urban’s status as an accomplice and co-accused, raise grave concerns with the inherent trustworthiness of the statement. These circumstances rather than enhancing the inherent trustworthiness of the statement significantly reduces it. Mr. Urban had a motive to lie, is a Vetrovec witness, lied while giving the statement, attempted to negotiate for personal benefit in exchange for “naming names,” was urged to tell “his story” before any other people being investigated identified him as the assailant, consumed drugs before his arrest, was a drug user at the time of the offence, and for the first part of the statement suffered from a lack of sleep. All these concerns make it imperative that Mr. Urban’s evidence be tested through cross examination in court before the jury and while under oath.
[36] Mr. Urban had a motive to lie about the offence and deflect the investigation from himself to others because he did not want to return to jail. At the time of his arrest, Mr. Urban’s liberty was in jeopardy. He was on the run because his mother had reported him for violating his parole. He was found in possession of Mr. Kowalchuk’s vehicle and was arrested for having it. He was being investigated for murder and arson.
[37] Several times throughout the statement, the detective impressed upon Mr. Urban that the statement was his opportunity to protect himself from other witnesses who might implicate him as the sole person who committed the murder…
…The detective encouraged Mr. Urban to protect himself by giving a statement before others had an opportunity to do so. Mr. Urban, who had experience with police, understood that complying with the detective’s request to “name names” would benefit his position, and possibly Ms. Cooley’s position, the most. He also admitted to speaking to Ms. Cooley before their arrest about what he would say. Moreover, Mr. Urban had an opportunity to think over his position and his story when the interview was adjourned for some ten hours for Mr. Urban to sleep.
[38] Mr. Urban went to great lengths to negotiate with the police in an attempt to trade information for personal benefit. The goal was to remain out of custody to live a normal life with Kyla Cooley. He asked about admittance to the witness protection program, portraying himself as a victim. He asked about the waiving of his parole violation. When it was clear the police could not forgo his parole violation and he would need to return to finish his penitentiary sentence, he negotiated further. Mr. Urban tried to minimize his time in jail by confirming he would not face any charges after giving his statement including the possession of stolen property.
[39] For example, at the end of his statement, after fully implicating Mr. Abraham, Mr. Boucher and Mr. Sims while minimizing his own involvement, Mr. Urban asked the officer “Like, now do I qualify for the witness protection program or, like, what?” The officer responded that it was not a conversation they were having that day. Mr. Urban pressed on asking when they would have the conversation. Mr. Urban did not stop pushing for advantage. Even after Mr. Urban gave his statement and was brought back to identify photographs of Mr. Abraham, Mr. Boucher and Mr. Sims, Mr. Urban tried to negotiate a quid pro quo with the detective for identifying Mr. Abraham’s photograph that Mr. Urban knew would not happen. He suggested that if he were to identify the photograph “I’d think I’d get like some kind of deal. You’d be like, okay, you get to go – go home tonight instead of fucking going to jail.”
[40] Moreover, Mr. Urban had a motive to not only lie about his involvement but had a motive to implicate the three accused persons. Detective Hassock tells Mr. Urban that if he does not identify who committed the murder, other people they are investigating will suggest Mr. Urban alone did it. Detective Hassock urges Mr. Urban to protect himself by providing names of those involved. In my view, the tenor of the entire conversation between Detective Hassock and Mr. Urban creates circumstances in which Mr. Urban had a motive to name others for the offence and minimize his own involvement.
[44] When viewing the statement in its entirety, Mr. Urban’s statement is calculated to point fingers at others while maintaining an exculpatory stance. For instance, Mr. Urban deliberately lied when he gave three different versions of his involvement in the murder. The first version was a complete denial. Mr. Urban denied knowing anything about the offence and told the detective he thought Mr. Kowalchuk had gone out of town. He lies about receiving permission to use Mr. Kowalchuk’s work truck, which was ultimately seized by the police with the identifying decals removed from it.
[45] The second version was given after the detective suggested it was Mr. Urban’s opportunity to tell his story before someone else did. The detective also suggested Mr. Urban tell them who was responsible if he was not. The detective urged Mr. Urban to “save” himself and to not leave his partner, Kyla Cooley, who was also providing a statement to the police, “on an island by herself.” Moreover, the detective told Mr. Urban that the evidence was against him and Ms. Cooley. The detective confirmed they had other suspects because “a few people” were involved.
[47] In Mr. Urban’s second version, Mr. Urban portrays himself as a complete innocent who is overwhelmed by three unknown assailants who rush into the home, to viciously attack Mr. Kowalchuk causing his death. He suggests he and Ms. Cooley are there and then within a few minutes into the story changes his position and says Ms. Cooley was not there. According to Mr. Urban, the assailants take valuable items from Mr. Kowalchuk’s room and force him to go with them to divide the proceeds of the crime.
[48] The third version was provided later in the police interview after urgings by the detective to protect himself and his partner Ms. Cooley who was also in police custody. It was provided after clear attempts by Mr. Urban to gain an advantage for himself for cooperating with the police. It is at this point that Mr. Urban identified the assailants, described the event in more detail, while describing his own involvement as insignificant.
[49] It was only near the end of the interview where Mr. Urban admitted to binding Mr. Kowalchuk but only so “I could sit him there” in a corner and leave him. He was asked directly by the detective if he hit Mr. Kowalchuk, and he said “no”. The detective responded, “not even once” to which Mr. Urban stated “well, maybe once, but that was it. Like – and it wasn’t even a hit, you know?…
[50] Mr. Urban repeatedly described himself during the interview as a non-violent person who would never commit a crime of violence despite his criminal record for assault resist arrest, firearms, and break, enter with intent to commit robbery. Mr. Urban also related an accusation that he tried to chase his brother with a knife. He admitted to robbing Mr. Kowalchuk before. Moreover, he admitted beating people in jail.
[51] Although motive to lie is merely one factor, Mr. Urban was a co-accused who had much to gain by his untruthfulness. Generally, admissions by one co-accused are not admissible against another because of the “natural inclination” for one co-accused to either share the blame or place the blame on others: R v Waite, 2013 ABCA 257 at para 118.
[52] Mr. Urban is also a Vetrovec witness who “cannot be trusted to tell the truth, even under oath” because he is a co-accused involved in the commission of the offence: Bradshaw at para 69; Khela at para 3. As pointed out by Justice Karakatsanis in Bradshaw, it is “extremely challenging” to show that a Vetrovec witness’s out of court statement is inherently trustworthy: Bradshaw at para 69. There is, however, no blanket prohibition against the admission of their hearsay evidence because the focus is on whether the hearsay dangers arising from the admission of a co-accused’s statement can be overcome: Bradshaw at para 69.
[54] In my view, the dangers presented by Mr. Urban’s hearsay statements are particularly severe considering the numerous indicators in the circumstances surrounding the making of the statement. All of these indicators make the statement inherently untrustworthy. Mr. Urban’s lack of truthfulness and trustworthiness significantly erodes the reliability of the statement, highlighting the need for cross examination to test his sincerity and motivations.
Does the corroborative evidence heard at trial establish the inherent trustworthiness of Mr. Urban’s statement?
[56] Bradshaw outlines four steps to assist the trial judge in assessing corroborative evidence in the substantive reliability inquiry: Bradshaw at para 57. A trial judge should:
1. Identify the material aspects of the hearsay statement that are tendered for their truth. 2. Identify the specific hearsay dangers raised by those aspects of the statement in the particular circumstances of the case. 3. Based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement. 4. Determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternative explanations such that the only remaining likely explanation for the statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement.
1. What are the material aspects of the hearsay statement that are tendered for their truth?
[58] The Crown identified fifteen material aspects of Mr. Urban’s statement. Together, these aspects provide evidence that all three accused committed the murder of Mr. Kowalchuk on February 13, 2022. The material aspects are as follows:
1. The three accused were there on February 13, 2022; 2. The three accused were there to rob Mr. Kowalchuk and take his safe; 3. The three accused drove there in a Chevy Cruze; 4. The two main assaulters were yelling pedophile and skinner; 5. The three accused left Mr. Kowalchuk face down on the floor wearing shorts; 6. The assault lasted an hour; 7. Rob Sims was one of the people who showed up with Mr. Abraham; 8. Mr. Abraham was one of the people who showed up at the house on February 13 with the other two accused; 9. The assault was a beating, they kept hitting him and attacking him with a machete and cut his fingers with one finger nearly cut off. Mr. Kowalchuk was screaming and it was mainly two people doing it; 10. They flipped him over and made a half-ass attempt at CPR; 11. Mr. Abraham was in and out of the room and Mr. Abraham just sat back and watched us do it; 12. They tied him up; 13. Abraham threatened both Urban and Cooley in front of Rob; 14. They asked Mr. Kowalchuk to open the door for cocaine; 15. Photos of the three accused were identified by Mr. Urban.
[59] This list relies on specific aspects from both the second and the final or third version of Mr. Urban’s narrative of the events. In both versions Mr. Urban describes what happens to Mr. Kowalchuk with some detail. Mr. Urban clearly has personal knowledge of the event because he was in the room when Mr. Kowalchuk was attacked. Nevertheless, he denies any significant involvement.
[60] Essentially the material aspects are that the murder happened on February 13, that they were there to rob Mr. Kowalchuk, and that all three accused were involved in causing Mr. Kowalchuk’s death.
2. What are the specific hearsay dangers raised by the material aspects of the statement?
[61] The specific hearsay dangers arising from Mr. Urban’s out of court statement is the inability for the jury to assess Mr. Urban’s testimonial qualities such as his sincerity, accuracy, narration, and demeanour because the testimony cannot be tested through cross examination. The primary concern is the inability to test Mr. Urban’s sincerity, credibility and truthfulness.
[62] Specifically, the defence is unable to challenge Mr. Urban on some of the evidence heard at trial such as Ms. Cooley’s admission that she and Mr. Urban planned to rob Mr. Kowalchuk and “fuck him up.” This evidence contradicts Mr. Urban’s comments in the statement that he was not violent and would not harm Mr. Kowalchuk, who was good to him. The defence is unable to explore Mr. Urban’s animus towards Mr. Kowalchuk and the jealousy Ms. Cooley described in court. Ms. Cooley also testified that the plan to violently rob Mr. Kowalchuk was to provide them with the means to move out of Mr. Kowalchuk’s home. After the robbery, Ms. Cooley testified that they had no intention of returning to Mr. Kowalchuk’s home. She also admitted to the undercover police that Mr. Urban told her he did the murder for her. This is only a few examples of the topic areas that Mr. Urban would face in cross examination. Just these examples alone could change how the jury would view Mr. Urban’s statement.
[63] Another example of evidence that was not available at the time of Mr. Urban’s statement was the analysis of Mr. Urban’s clothing detecting gasoline. Mr. Urban denied any involvement in the fire. This inconsistency would be another subject area of cross examination that would benefit the jury’s assessment of the trustworthiness of Mr. Urban’s statement.
3. Based on the circumstances and these hearsay dangers, what are the alternative, even speculative, explanation for the statements?
[65] There are alternative plausible explanations for the statement. One alternative explanation is that Mr. Urban robbed and killed Mr. Kowalchuk, while Mr. Abraham, Mr. Boucher and Mr. Sims were only involved in taking and disposing of items from the home. This is plausible because Mr. Urban planned to rob and “fuck up” Mr. Kowalchuk. He also believed he was a pedophile and skinner. When Mr. Urban overstepped the robbery plan, Mr. Boucher and Mr. Sims, after being told by Mr. Urban they had to help because they were somehow involved, concealed the murder and robbery by setting Mr. Kowalchuk’s house on fire. Throughout Mr. Urban’s interview, Mr. Urban complained of having to get rid of the body and not wanting to do so. After the murder, he and Ms. Cooley protected themselves.
[66] Another alternative explanation is a variation of this as submitted by the defence, which is that Mr. Abraham, Mr. Boucher and Mr. Sims robbed Mr. Kowalchuk but did not kill him and that Mr. Urban did when he returned to retrieve the safe later that night.
[69] I pause to compare this with the factual backdrop found in the Bradshaw case. I acknowledge that the determination to admit hearsay evidence is based on the specific facts of each case. Even so, in Bradshaw the Crown sought the introduction of the video re-enactment of the co-accused Mr. Thielen, that was effectively Mr. Thielen’s hearsay statement. Before this reenactment, Mr. Thielen was subject to a Mr. Big investigation in which he gave varying accounts of who was responsible for the shooting death including an admission he was the sole shooter.
[71] Under this step of the analysis, I am required to identify alternative, even speculative, plausible explanations for the statement of Mr. Urban based not only on the circumstances of the case but also considering the hearsay dangers posed by that statement. In my view, the Crown’s position merely highlights the hearsay danger in admitting Mr. Urban’s untested statement from an inherently untrustworthy co-accused. No doubt, the defence, if Mr. Urban testified, would cross examine Mr. Urban on the Kyla Cooley evidence and had planned to do so. Not only has Mr. Urban held his evidence “hostage” for the Crown, but also for the defence.
[72] In any event, to suggest that Ms. Cooley’s observations of Mr. Urban and her conversations with him are inadmissible for purposes of threshold reliability is inconsistent with the truth-seeking function of this court and the overarching concern with trial fairness that permeates the principled approach regime to such an extent that according to Justice Charron in Khelawon, the hearsay inquiry can take on constitutional dimensions: Khelawon at para 47.
[73] In my view there are alternative plausible explanations available in reviewing the entire circumstances of the case. It is not appropriate to foreclose alternative plausible explanations based on the Crown’s submissions on the weight of the evidence heard at trial. I am not concerned in this analysis with the positions the parties will take to advance their case before the jury. My focus is not on the ultimate strength of the Crown’s case.
[74] Alternative plausible explanations do not need corroboration by trustworthy evidence. They need to be plausible in the sense they are possible hypotheses that may explain the events. All these alternative explanations are consistent with the defence theories of the events. Alternative explanations are by their very nature, arguable and based on one view of the events. By suggesting the alternative explanations are only plausible if there is provable evidence in my view, undercuts the focus and purpose of the principled admissibility approach to hearsay.Hearsay is presumptively inadmissible, and in this case in particular there are grave concerns with the trustworthiness of Mr. Urban’s untested statement.
[75] Moreover, the Crown’s position is based on circular reasoning. According to the Crown, alternative explanations are not plausible because the corroborative evidence eliminates those explanations. That analysis is, of course, for the next step.
4. Given the circumstances of the case, does the corroborative evidence rule out these alternative explanations such that the only remaining likely explanation for the statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement?
[76] Before conducting this final step, I will comment on the nature of the corroborative evidence proffered by the Crown in support of the threshold reliability of Mr. Urban’s statement. In reviewing the totality of the corroborative evidence on the material aspects of Mr. Urban’s statement, I find the corroborative evidence either fails to eliminate the alternative explanations posed or, at best, are “equally consistent” with the truthfulness of some of the material aspects of Mr. Urban’s statement as well as the alternative explanations, and therefor the corroborative evidence does not assist.
[77] First, this is a joint trial and not all the evidence introduced at trial is admissible against each of Mr. Abraham, Mr. Boucher and Mr. Sims. The corroborative evidence of Mr. Urban’s statement for each of Mr. Abraham, Mr. Boucher and Mr. Sims is therefore different.
[78] Second, much of the corroborative evidence is untrustworthy. Ms. Cooley, who was investigated for the murder, and was involved in certain aspects of the offence is a Vetrovec witness whose evidence is inherently untrustworthy, even if given under oath. She has an admitted animus against Mr. Kowalchuk and every reason to protect herself and her partner Mr. Urban…
[79] Ms. Bender is also arguably a Vetrovec witness because her phone and car was identified as involved in the aftermath of the offence. She has a significant criminal record involving crimes of dishonesty. Moreover, she admitted to heavy drug use during the time she was with Mr. Abraham, Mr. Boucher and Mr. Sims. She also testified that all of Mr. Abraham, Mr. Boucher and Mr. Sims were highly intoxicated at the time. These are the two witnesses that provide evidence admissible against all three of Mr. Abraham, Mr. Boucher and Mr. Sims although some of their evidence is only admissible against the three men individually.
[80] As against Mr. Boucher, there is evidence of collusion between Sarah Joy and Ms. Boucher. Both Sarah Joy and Ms. Boucher have animus towards Mr. Boucher and motive to lie. There is contradictory evidence between Ms. Joy and Ms. Boucher because Ms. Boucher denied meeting with Sarah Joy for three hours. Ms. Boucher also denied they shared what Mr. Boucher said in an effort to piece together his story. Some of the information may have been gleaned from media reports. Mr. Goeson admitted some tainting of his evidence because he was present both times when Ms. Boucher spoke to the police. He also admitted his memory of the events had diminished
[82] The Crown also maintains that because the defence cross examined the witnesses and the witnesses either maintained their position or were not challenged on their position the witnesses’ evidence is trustworthy corroborative evidence. There are two flaws with this argument. First is the general concern that the Crown is asking me to enter into an assessment of the strength of the Crown’s case. I am reminded that at no time should the admissibility inquiry “turn into a full trial on the merits”: Blackman at para 57.
[83] The second concern is related to the first one. A witness may hold strong to their evidence on cross examination or may not have been cross examined on a specific point but that is not the end of a witness’s testimonial assessment. The complete assessment involves all the testimonial factors including motive to lie, character, and sincerity as a witness. Witnesses such as Kyla Cooley have significant credibility issues that must be accounted for in relying on their evidence as corroborative. I suspect that this is the very reason why Justice Karakatsanis in Bradshaw suggested untrustworthy corroborative evidence was irrelevant to the substantive reliability inquiry because it could not eliminate alternate plausible explanations for the hearsay: Bradshaw para 50. I find the untrustworthy corroborative evidence in this case fails to eliminate the alternative explanations.
[84] …According to Bradshaw, corroborative evidence that is “equally consistent” with truthfulness of the statement as well as the alternative explanation, fails to assist: Bradshaw at para 48. Such corroborative evidence “does not add to the statement’s inherent trustworthiness”: Bradshaw at para. 48. To that end, I am obliged to point out and assess the frailties in the corroborative evidence proffered by the Crown
[86] An example of the inability of the corroborative evidence to eliminate the alternate plausible explanations is in the assessment of the material aspect of the statement that the offence happened on February 13. There is some circumstantial evidence that the offence happened on that day from Kyla Cooley. The Crown points to her taxi invoices as support for Ms. Cooley’s evidence that she saw a Chevy Cruze at Mr. Kowalchuk’s home. There is CCTV evidence that the car was in the area. However, this evidence cannot eliminate the alternative explanation that Mr. Urban beat Mr. Kowalchuk to death and that the other men were unaware this would happen and were in any event only involved in dealing with the stolen items. It cannot eliminate the possibility that the three accused, having been involved in the plan to deal with stolen goods were also privy to what happened to Mr. Kowalchuk because Mr. Urban told them.
[87] The autopsy cannot eliminate the possibility that death happened either earlier, before Ms. Cooley left for her mother’s or closer to when Sharlee Rennie found the body in the afternoon of February 14. The last phone call with the deceased was 3:00pm but Ms. Cooley did not leave until close to 5:00 PM. Neither can the corroborative evidence foreclose the plausible explanation that Mr. Urban killed Mr. Kowalchuk, who was left tied up by him, when he returned for the safe.
[88] I find that this example highlights the inability of the corroborative evidence to eliminate the plausible explanation that Mr. Urban knows the details of the offence because he is the one who committed the offence alone.
[90] On balance the corroborative evidence proffered by the crown fails to eliminate other plausible explanations. I am not satisfied that the only likely explanation for Mr. Urban’s hearsay statements is his truthfulness about the numerous material aspects of this statement for which the Crown relies.
[91] There is however other evidence the Crown turned to for corroboration such as CCTV footage, cell phone evidence, the Boucher and Abraham phone calls, and the autopsy results. This type of evidence does not pose the difficulties and concerns I have raised with the witnesses at this trial. However, the inferences available for that evidence is limited. CCTV can identify vehicles but not the people in them. For instance, the Chevy Cruze is captured in the neighborhood of the deceased. Mr. Urban testifies the three men who attend the home were in a Chevy Cruze. Mr. Urban describes the car as blue when it is clearly not blue in the CCTV. Even so, at best the CCTV can confirm the Cruze was at the home near the time Urban says it was. It cannot confirm that the three men committed the offence rather than Mr. Urban.
[92] The cell phone evidence also presents difficulties considering the concession by the analyst that he cannot say who was using the phone, that the location derived from cell phone use is fraught with limitations, and that number of calls and when they happened are subject to the way in which each telephone provider gathers and analyzes their own data. It too can only confirm cell phones are used around the area at a particular time. It cannot eliminate the alternative explanation that Mr. Urban alone caused the death of Mr. Kowalchuk.
[93] Mr. Boucher’s inmate phone call to Ms. Bender where he says “the idiots came to his house and pulled him into it” is equally consistent with Mr. Boucher and with the alternate explanation that he was at the home when the murder happened but did not know it would happen and was only looking for items to steal. It could also be consistent with his involvement in the fire only.
[95] The Crown references the Khan and FJU cases (see R v FJU, 1995 CanLII 74 (SCC), [1995] 3 SCR 764) as analogous to the case before me because the court found corroborative evidence in both cases showing that the only likely explanation for the hearsay statement was its truthfulness. In Khan, the semen stain was powerful evidence of the truthfulness of the child’s statement to her mother. It was independent proof that the sexual assault, the actual offence, happened. There was no alternative explanation for the semen stain. Here, there is no similar independent corroborative evidence proffered by the Crown.
[96] For instance, there is no DNA evidence or fingerprint evidence to show the only likely explanation is Mr. Urban’s truthfulness. In fact, in terms of that kind of evidence, the only fingerprint is Mr. Urban’s print on Mr. Kowalchuk’s phone showing he alone was handling it. The CCTV evidence and the phone call evidence, viewed in the entire context of the case, cannot eliminate the plausible alternative that Mr. Urban committed the offence on his own and that the other accused and the other witnesses gained knowledge of the offence other than by committing the murder as well.
[97] As for the FJU case, the circumstances were very different than the case at bar. It involved a recanting witness, the daughter of the accused, who was available for crossexamination, and initially alleged that her father committed repeated assaults on her. The second statement was from the accused himself who admitted the assaults and described them in a “strikingly similar” way to the complainant’s statement. The Crown suggests Mr. Urban’s statement is strikingly similar to the admissions made by Mr. Sims and Mr. Boucher and even Mr. Abraham to various witnesses. I agree there are similarities, but they are not strikingly similar. Mr. Urban’s statement is the most detailed description of the events. He describes the tying of Mr. Kowalchuk with electric cord. He describes where the blows landed on Mr. Kowalchuk.
[98] In my view the similarities in the statements cannot eliminate the plausible explanation that the accused relayed information to the witnesses after the event, not because they committed the murder but because they gained knowledge of it from Mr. Urban who did…
[99] In the end, the corroborative evidence will only assist with the substantive reliability of Mr. Urban’s statement if it shows in the circumstances of the case, the only likely explanation is that Mr. Urban was truthful about the accused involvement in the murder. In finding that the corroborative evidence when viewed as a whole does not show that the only likely explanation for Mr. Urban’s statement is that it is truthful, I am also mindful of the specific hearsay danger of the lack of cross examination to test the sincerity of Mr. Urban’s statement. In this I am guided by Justice Karakatsanis’s comments in Bradshaw at paragraph 71 that when the hearsay danger is sincerity, the circumstances and corroborative evidence must show that the possibility the declarant lied is substantially negated, that ‘even a special caution would look upon [the statement] as trustworthy’”. [Emphasis by PJM]
Conclusion
[101] In the end, I am reminded by the Crown’s final comments to me on the public interest in a fair trial. A fundamentally fair trial is a cornerstone of our justice system and is why the “threshold reliability analysis has constitutional dimensions”: Charles at para 48. The concern for trial fairness and truth seeking are both expressed in the inquiry on admissibility of hearsay evidence. In doing so I am preserving the integrity of the trial by ensuring the jury will only receive properly admitted evidence: Charles at para 48. Truth seeking and trial fairness are twin goals of the evidentiary rules which we rely on to fulfill this goal. In my view both goals, truth seeking, and trial fairness are eroded by the admission of a statement of a co-accused who shows throughout his statement a drive to self-preservation, a deliberate calculation to enhance his own position, and who was clearly involved in the offence.
[102] Mr. Urban’s hearsay statement is therefore inadmissible. The Crown’s application is dismissed.
R v Boucher, 2024 ABKB 722
[November 15, 2024] Res Gestae Exception to Hearsay, Adoption by Silence [Justice Lisa A. Silver ]
AUTHOR’S NOTE: This decision provides a nuanced application of two distinct evidentiary concepts—Res Gestae (excited utterances) and adoption by silence—both of which favoured the defence in this case. Here’s a breakdown of the principles and their application:
1. Res Gestae Exception to Hearsay
The Res Gestae exception, particularly involving excited utterances, allows hearsay statements to be admitted if they are made in the heat of the moment, without the declarant having the opportunity to fabricate or reflect. This ensures the reliability of such statements as they are deemed instinctive reactions rather than calculated responses.
Key Points from the Decision:
- The witness in question, despite being unsavoury and problematic in other contexts, had made a statement during an excited and emotional state.
- The court found that this particular utterance was admissible under the Res Gestae exception because:
- It was made spontaneously during an emotionally charged moment.
- There was insufficient time for the declarant to concoct or fabricate a story.
- The spontaneity of the utterance rendered it more reliable than their later, more reflective statements, which were excluded under the principled exception to hearsay.
Practical Implication:
Defence counsel should recognize that even unsavoury witnesses can give admissible excited utterances. However, this exception relies heavily on the timing and emotional context of the statement. When facing such evidence, counsel should scrutinize whether there was truly an absence of time for concoction or reflection.
2. Adoption by Silence
The doctrine of adoption by silence allows a party’s silence in response to a statement to be treated as implied agreement if the circumstances are such that a reasonable person would have been expected to respond. It is a challenging and rarely applied principle due to its inherently speculative nature.
Crown’s Argument:
- The Crown attempted to argue that the silence of co-accused in a group setting constituted implied adoption of incriminating statements made by others.
- The claim was based on evidence from a third party who heard varying versions of events from the group, with some individuals remaining silent during the discussions.
Court’s Analysis and Rejection:
- No Presence of All Parties: The group members were not all present simultaneously when the statements were made, undermining the claim of implied adoption.
- No Circumstances Requiring a Response: Silence can only be treated as adoption if the context is such that the accused would reasonably be expected to respond. Here, the court found no such obligation.
- Inconsistent Accounts: Each co-accused gave differing versions of events. The lack of a cohesive narrative or agreement meant there was no reliance on another’s statements requiring either assent or contradiction.
Practical Implication:
Defence counsel can challenge adoption by silence arguments by focusing on:
- Whether the accused was present and heard the statements.
- Whether the context demanded a response (e.g., was the accused under pressure to deny or clarify the statements?).
- Whether silence could reasonably be interpreted as agreement, especially if the group members provided conflicting accounts.
Introduction
[1] During the pre-charge conference, I heard multiple arguments on the content of the final instructions to the jury. This is my ruling on four of those issues.
Admissibility of Res Gestae Statement
[18] First, is an application to admit an out of court statement made by Justin Urban to Kyla Cooley for the truth of its content.
[19] According to counsel, the hearsay statement is admissible under the traditional exception for res gestae statements. The primary argument is that the statement is a spontaneous utterance made by Mr. Urban to Kyla Cooley. Counsel also relies on the admissibility of the statement under the present impression exception to the hearsay rule.
[21] Ms. Cooley, before she related this hearsay statement, was in direct examination by the Crown. She was asked when she had returned to Mr. Kowalchuk’s house between February 13th and 16th. Ms. Cooley indicated she and Mr. Urban returned to the home on February 14. They arrived at the home in Mr. Kowalchuk’s truck and stayed “not even” for five minutes.
[22] Ms. Cooley was then asked, “and what did you do when you got there?” Ms. Cooley explained that,
“Basically went in the front door. Justin went upstairs to Chad’s bedroom, and then he ran back downstairs really fast and said, Go, go, go, go, go, and so we went back outside to the truck. And I was asking him, What’s the problem? Like, why are you freaking out? I thought maybe the cops were in there. And he said, I think Chad’s still alive because his body is moved.”
[23] Ms. Cooley confirmed she did not go upstairs at the time. She stayed in front of the doorway. Ms. Cooley was not examined about this incident further.
[24] The term res gestae covers a compendium of hearsay statements. One kind of res gestae that may be admitted for the truth of its content are spontaneous or excited utterances made by an out of court declarant: R v Sylvain, 2014 ABCA 153 at para 30. It is a traditional exception to the hearsay rule because it is one of many exceptions that the courts have recognized in the development of common law principles.
[25] In permitting exceptions to the hearsay rule, the common law developed criteria for admissibility under each category of exceptions. The criteria are applied functionally and, on a case-by-case basis. An excited utterance is admitted where the statement was made contemporaneous to an unusual or overpowering event and in circumstances where the declarant was left so “emotionally overpowered” by the event the declaration had the guarantee of reliability: R v Pelletier, 2024 SKCA 12 at para 21 [Pelletier].
[26] The contemporaneity requirement has relaxed somewhat over the years of the rule’s usage, but it is a core requirement for admissibility: Pelletier at para 23. The declarant must at the time of the utterance continue in the state of emotional excitement to eliminate the risk of concoction or distortion: Pelletier at para 23.
[27] Although the sense of emotional turmoil may diminish over time, temporality is only one factor in determining admissibility. The focus is on whether the effects of the event are operating at the time the statement was made to ensure the guarantee of reliability:R v Hartling, 2020 ONCA 243 at para 59.
[28] There are various factors to consider in determining whether the excitable utterance is admitted because the possibility of concoction or distortion can be disregarded: R v MacKinnon, 2022 ONCA 811 at para 42; R v Badger, 2021 SKCA 118 at para 31, aff’d 2022 SCC 20. Some of those non-exhaustive factors can be found in the following three questions (see also R v Andrews, [1987] 1 AC 281 at pp 300-301):
1. What were the circumstances in which the statement was made and was it so startling or dramatic to dominate the mind of the declarant such that the statement was a reaction to an event without time for reflection or reasoning? 2. Was the event that triggered the reaction still in operation when the declaration was made? 3. Are there any special features relating to concoction or distortion?
[29] In this case, Ms. Cooley described a dramatic event involving Mr. Urban who rushed down in an emotionally heightened state. His declaration both as he was rushing down the stairs and out of the home and when questioned by Ms. Cooley was reactive without time for reflection. I agree with counsel for Mr. Boucher that Ms. Cooley’s recitation of the event flowed seamlessly from Mr. Urban’s declaration both before and after Ms. Cooley’s question.
[30] The circumstances of the event of Mr. Urban entering the room where he left Mr. Kowalchuk’s body and seeing the body moved would, in my view, trigger an excitable emotional state. Ms. Cooley’s question would not have tempered that reaction, nor would it diminish the guarantee of reliability of Mr. Urban’s comment.
[31] I am satisfied that the comment had sufficient contemporaneity because the effects of the startling event were still operating when Mr. Urban made his comments to Ms. Cooley. This is confirmed by Ms. Cooley’s question to Mr. Urban asking him why he was “freaking out.” Mr. Urban’s emotional state was still evident to Ms. Cooley.
[32] I further find there are special features to this event that obviate concoction and distortion. First, Ms. Cooley’s own reaction to Mr. Urban’s emotional state also had a spontaneous nature to it. Second, although Mr. Urban was not in the home long, not more than five minutes according to Ms. Cooley, that is long enough for Mr. Urban to take in the scene of the bedroom and to be fully impressed by an unexpected difference in the position of the body.
[33] In those circumstances, I am satisfied that this statement made by Mr. Urban is an excitable utterance that is admissible under the res gestae hearsay exception and can be relied upon for the truth of its content. Mr. Urban when he told Ms. Cooley that the body had moved was still operating under the immediate stress of the observations he made. His statement was made in circumstances of trustworthiness being under such emotional excitement from finding the body in a changed position that the possibility of concoction or distortion can be safely disregarded…
Adoption By Silence
[34] The second issue is whether the jury should be specifically charged on the adoption of a statement of one person charged by one or more of the other persons charged.
[35] The issue concerns the evidence of Ms. Bender about the conversation she had with Mr. Sims in Mr. Boucher’s bedroom in which Mr. Sims describes beating, maiming and binding of Mr. Kowalchuk.
[36] The defence argues that an instruction to the jury on adoption by silence is not appropriate considering Ms. Bender’s ultimate evidence that each of Mr. Abraham, Mr. Boucher and Mr. Sims made specific statements to her. None of those statements were accusatory requiring a response from any of the three men. It was simply not a situation in which a response from any of the three would be expected. The Crown submits that all of Mr. Boucher, Mr. Sims and Mr. Abraham joined the conversation and were part of it. In those circumstances, the Crown suggests silence by one of them upon hearing the others speak of the events would provide a basis for adoption of the statements made by that person.
[37] A person adopts an admission made by another person where the person agrees either expressly or by implication, with that statement either through words, actions, conduct, or demeanour: R v Cudney, 2023 ABCA 279 at para 130; R v Millard, 2023 ONCA 426 at para 91. Agreeing with the statement can also be implied from the person’s silence in circumstances which “give rise to a reasonable expectation of reply.” Mere silence is not enough: R v SKM, 2021 ABCA 246 at para 39. The court must approach adoption by silence with “great caution” because there may be other reasons for why an accused person remains silent: R v Scott, 2013 MBCA 7 at para 21.
[38] In the circumstances of this case, Mr. Boucher, Mr. Abraham and Mr. Sims each make statements about the events at the deceased’s home to Ms. Bender. The description by Ms. Bender of this conversation suggests the conversation is free flowing with Mr. Boucher joining and Mr. Abraham leaving at some point. Moreover, Mr. Boucher and Mr. Abraham clearly describe their own involvement. Mr. Boucher suggests he wandered around the home and in the end performed CPR on Mr. Kowalchuk. Mr. Abraham also describes dealing with the safe in Mr. Kowalchuk’s room but does not say what he did to Mr. Kowalchuk. Ms. Bender testified that the emotions were high during the conversation, that they were “quite upset,” and were showing signs of sleep deprivation and drug use.
[39] In my view, these are not circumstances where an instruction on adoption by silence is appropriate. Indeed, people are talking in this conversation, leaving no room for silence or at least no evidence of when any particular person was silent and could potentially be adopting another person’s statement.
[40] In this circumstance, I decline to charge the jury specifically on adoption by silence. The jury can use this evidence in deciding on the guilt or innocence each of Mr. Boucher, Mr. Abraham and Mr. Sims.
R v Vandal-Lauman, 2024 ABKB 667
[November 14, 2024] Conditional Sentences and the Principle of Restraint [Justice Kent J. Teskey]
AUTHOR’S NOTE: Practical Implications of the Decision:
- Reinforcement of the Principle of Restraint:
- This case serves as a reminder that courts are obligated to exhaustively consider alternatives to incarceration, particularly for non-violent offences where rehabilitation is a realistic goal.
- Addressing Addiction in Sentencing:
- The decision reflects a growing recognition within the justice system that addiction is a health issue, not simply a moral failing. Sentences that prioritize treatment and reintegration over incarceration are increasingly seen as more effective in reducing recidivism.
- Individualized Sentencing:
- Even with prior offences, judges must assess each case on its merits, considering the unique circumstances of the offender and the context of the crime. A history of similar offences does not automatically justify harsher penalties if mitigating factors like addiction are present.
Introduction
[1] The Accused stands convicted after trial of possession for the Purpose of Trafficking of Methamphetamine, Simple possession of Fentanyl, Simple Possession of Cocaine and Possession of Proceeds of Crime. The Crown seeks a sentence of three and a half years. The Defence seeks a Conditional Sentence of two years less a day. For the following reasons, I sentence the Accused to a Conditional Sentence.1
Circumstances of the Offence
[2] In early 2022, The Edmonton Police Service conducted surveillance of a townhouse in Northeast Edmonton occupied by the Accused. Based on their observations, EPS was granted a search warrant, which was executed on May 10, 2022. As a result of the search, police seized roughly 40 grams of methamphetamine and small amounts of cocaine and fentanyl.
Circumstances of the Accused
[3] The Accused is 29 years old. She has a related criminal record, including a conviction for possession for the purpose of trafficking, for which she was serving a conditional sentence at the time of this offence. However, she has been on release for these charges since August 9, 2022, without incident.
[4] The Accused began abusing illicit substances at the age of 13, including crack cocaine at the age of 14. While she was able to remain sober between the ages of 16 and 19, it appears that drug addiction has figured prominently over the majority of her life.
The Maskill Starting Point in Light of Parranto
[7] Drug trafficking is a serious offence. Illicit Drugs have serious consequences both on the individual user and the public at large. The primary focus in sentencing this type of offence is denunciation and deterrence. R v Maskill 1981 ABCA 50.
[8] While there has been a substantial amount of jurisprudence in Alberta, beginning with Maskill, which created a starting point for sentencing cocaine trafficking at more than a minimal scale, the use of this authority has been substantially altered in light of the Supreme Court decision in R v Parranto, 2021 SCC 46.
[9] Parranto is a clear message to sentencing judges that while a starting point is a permissible form of sentencing guidance for trial judges, it must not be considered a binding analytical framework. At its highest, a starting point is a tool (Parranto at 4) and must be applied with a clear view of its limitations and risks. I take the following directions from the Parranto decision.
[10] First, Sentencing is an individualized process. We sentence people rather than offences. The risk inherent in a starting point is that the characteristics of the offence are unduly prioritized over the offender. Or worse, the offender’s circumstances are effectively subordinated in efforts to align the sentencing process with the starting point [Emphasis by PJM]
[12] Second, the act of sentencing is one of considerable discretion, which “…includes the choice of a sentencing range or a category within a range” (Parranto at 30). It is a process that must holistically recognize the full orbit in which I undertake my sentencing task. Framed in the words of R v Gladue, 1999 CanLII 679 (SCC) at para 80, I must answer the question, What is the appropriate individualized sentence “[f]or this offence, committed by this offender, harming this victim in this community.”
[13] Lastly, starting points understandably exist for criminal conduct that ordinarily carries high public interest. I am unaware of a starting point in Alberta that does not give primacy to the principles of denunciation and deterrence. I share Justice Rowe’s concern that a sentencing regime solely grounded in retribution may leave little room for a sentencing judge to give meaningful effect to rehabilitation and restorative justice.
This Offender and this Offence
[15] to the extent that the Accused was a trafficker, she was also an addicted user— the Presentence Report supported by collateral contacts describes a descent into addictions at a young age. There is considerable debate in the case law about whether addictions are a mitigating factor. Having reviewed many of these authorities, I am of the view that the question can compel a flawed analysis. Asking whether it is more or less serious, aggravating or mitigating to deal drugs while addicted frames the question solely within denunciation and deterrence. In my view, evidence of addiction and rehabilitation does not affect the seriousness of the offence; instead, it is relevant to how to apply the individual sentencing factors.
[16] If an offender is a commercial trafficker solely motivated by greed and profit, denunciation and deterrence must be the priority. Where an offender profited from trafficking but also was substantially motivated by addictions, the individualized sentencing response may require a focus on rehabilitation as well as deterrence and denunciation. [Emphasis by PJM]
[17] A court must also consider the offender’s progress between the offence date and the sentencing. While the Court is sentencing conduct that occurred in the past, it must deal with the offender as they are on the sentencing date. Therefore, an offender who has made concrete efforts at rehabilitation while on release should be given credit for that in sentencing. Moreover, substantial evidence of rehabilitation may justify sentencing substantially less than the norm,R v Liparoti, 2011 ABCA 250. [Emphasis by PJM]
Range of Available Sentence
[18] The Crown seeks 3.5 years, while the Defence seeks a Conditional Sentence of 2 years less a day. Both Counsel fairly concede that both sentences exist within the range of possible outcomes for this offence.
[19] A Conditional Sentence Order is not an unusual sentence for this offence, although it is most often imposed for a first-time offender, which does not describe Ms. Vandal-Lauman, R v Wong, 2024 ABCA 212.
Requirements for a Conditional Sentence Order.
[22] It is worth remembering that conditional sentences were introduced concurrently with the creation of s 718 of the Criminal Code, a point made in the introduction of the Second Reading of Bill C-5 in Parliament by Gary Anandanagaree, Parliamentary Secretary to the Minister of Justice on December 13, 2021,
To appreciate the pressing need for these reforms, we must go back to the foundational principles of sentencing in Canada. The fundamental purpose and principles of our sentencing regime are rooted in trail-blazing reforms made in 1996, which created a statutory recognition that sentencing is an individualized process that relies on judicial discretion to impose just sanctions. Such sanctions are proportionate to the degree of responsibility of the offender and the seriousness of the offence.
To give full effect to these principles, the 1996 reforms created conditional sentences of imprisonment that allowed judges to order that terms of imprisonment of less than two years be served in the community under certain conditions. An offender could be eligible for a conditional sentence if serving their sentence in the community would not pose a risk to public safety, if the offence for which they were convicted is not subject to a mandatory minimum penalty and if the community-based sentence would be consistent with the fundamental purpose and principles of sentencing.
[23] In my view, Parliament has directed sentencing judges not to see conditional sentences as exceptional but rather as a primary tool in achieving just sentencing outcomes grounded in restraint.
Is the Accused a risk to the community?
[24] The Accused has been under supervision successfully in the community since August 2022. She is employed and appears to be living a pro-social life. I find that she has made significant rehabilitative efforts since the date of the offence.
[27] The Crown also raises concerns about her unwillingness to engage in structured addiction counselling recommended by the supervisor. I accept that addiction is a highly personal issue for which there is no one means to achieve sobriety. People become addicted for complex reasons, and I accept that a person must find treatment which is authentic to them. Moreover, to the extent to which addictions may be grounded in personal trauma, a person may have reasonable reluctance about sharing this trauma amongst strangers.
[28] In the final analysis, the question I must consider in sentencing this accused is whether she has achieved a concrete measure of rehabilitation since the offence, not to audit the particular treatment path she has taken. As I have noted, I find that she has made significant progress towards rehabilitation, and I am not concerned about her lack of formal counselling.
Is the imposition of a conditional sentence consistent with the fundamental purpose of sentencing?
[29] There is compelling logic to the Crown’s argument that giving Ms. Vandal-Lauman a second conditional sentence order after her reoffence would simply be inconsistent with the principles of sentencing. I would accept this argument if my only role were to impose a sentence disproportionately grounded in retribution. That is not my role.
[31] The principle of restraint serves a vital role in a just sentencing process. The goal of a sentence must be to achieve the aims of sentencing within the least onerous sentence available. Or as framed by the Supreme Court of Canada in R v Nasogaluak, 2010 SCC 6, at para 48, a sentence “that both speaks out against the offence and punishes the offender no more than is necessary”. [Emphasis by PJM]
[32] In R. v. Hamilton, 2004 CanLII 5549 (ONCA) at para 96, the Ontario Court of Appeal described the impact of the statutory principle of restraint, in a passage that was accepted by the Alberta Court of Appeal in R. v. Tasew, 2011 ABCA 241,
96 The express inclusion of restraint as a principle of sentencing is one of the most significant features of the 1996 Criminal Code amendments statutizing sentencing principles for the first time. As Professor Manson explains [in The Law of Sentencing, (Toronto: Irwin Law, 2001) at p. 95]:
Restraint means that prison is the sanction of last resort … Restraint also means that when considering other sanctions, the sentencing court should seek the least intrusive sentence and the least quantum which will achieve the overall purpose of being an appropriate and just sanction. [Emphasis by PJM]
[33] I find that a sentence of 2 years less than a day served in the community is the least onerous sentence I can impose for this offender for this offence.
[34] While I have considered the Crown’s argument that the offender should serve her sentence in a custodial setting, I find that such a sentence would not achieve a more proportionate sentence for this offender; instead, it would likely subvert the offender’s efforts at rehabilitation. Gary Anandanagaree’s comments to Parliament apply well to this sentencing.
“These are people who deserve a second chance or an off-ramp from the criminal justice system. They are people who, with the right support, will never offend again. Sending them to jail, which hurts not only them but their families and communities, will do nothing but put them on a path toward further criminality.”
Conclusion
[35] The Accused will be sentenced to a conditional sentence of two years less a day on terms that will be canvassed with Counsel.
