Indexed as:
R. v. McCrory

Between
Regina, and
Jabari McCrory, David Martin Walker and Melinda Mae Carter

[2001] B.C.J. No. 1622
2001 BCPC 165
Vancouver Registry No. 121713-1-D

British Columbia Provincial Court
(Criminal Division)
Vancouver, British Columbia
Kitchen Prov. Ct. J.

Heard: July 10-19, 2001.
Judgment: July 24, 2001.
(86 paras.)

Counsel:

 

Henry J. Reiner, for the Crown.
Lawrence W. Myers, for the accused McCrory.
Ian Donaldson, Q.C., for the accused Walker.
Russell C. MacKay, for the accused Carter.

 

 1      KITCHEN PROV. CT. J.:—  There are three accused in this case, Jabari McCrory, David Martin Walker, and Melinda Mae Carter. All three are apparently residents of Oregon in the United States of America and these charges relate to allegations that they brought another Oregon resident, an eleven year old girl, to Vancouver for the purposes of prostituting her. I have ordered a ban on publication of the identity of the complainant and therefore I will refer to her as Miss Green.

 2      All three accused are charged that they lived on the avails of prostitution of Miss Green, a person under the age of eighteen years; that they used, threatened to use or attempted to use violence, intimidation or coercion in relation to Miss Green for this purpose; and that they did, for the purposes of gain, exercise control, direction and influence over the movements of Miss Green to carry on prostitution. In addition, the first two accused, the two males, are charged that they assaulted Miss Green, and that they possessed marijuana.

 3      McCrory alone is charged with the remaining two counts on the information that he did, for a sexual purpose, touch directly or indirectly with a part of his body or an object, the body of Miss Green, a person under the age of fourteen years and that he sexually assaulted Miss Green.

 4      The trial began on July 10, 2001 and we commenced with a voir dire to determine the admissibility into evidence of Exhibit Three in these proceedings, a videotape recording of an interview between the police and Miss Green after she had been apprehended on the streets of Vancouver. It is the Crown's position that this videotape must be admitted because it is both necessary and reliable as evidence in the absence of Miss Green. Counsel for the accused object that the videotape is both unnecessary and unreliable.

FACTUAL BACKGROUND

 5      This is a hearing to determine the admissibility of evidence. Many of the matters mentioned here remain issues on the trial proper but for the purposes of this voir dire, I find the following to be likely.

 6      In the very early morning hours of February 23, 2001, Green entered Canada by vehicle with the three accused.

 7      Constable Dhaliwal of the Vancouver City Police was on duty with a social worker on February 24, 2001 in what he described as the "kiddy car", a patrol unit assigned to investigate children at risk in the community. At 1:30 in the afternoon, in the area of Franklin and Woodland Streets, he saw Miss Green. This is in the area known as the "kiddy stroll" - an area where many young prostitutes may be encountered. Constable Dhaliwal did not recognize Miss Green and stopped to investigate. He described her as "young looking," and wearing a short dress and a bikini top, giving the appearance of working as a prostitute. When she hesitated to come to the police vehicle, he turned on the emergency equipment and she responded by coming to the window of the police vehicle. His impression was that she was no older than fourteen or fifteen.

 8      Dhaliwal asked Green for identification. She produced none, but gave a name other than her own and a date of birth making her about twenty years old. She was not able to give her age, so they suggested that she was lying and questioned her further for five to ten minutes after which she provided the name we presently know and a date of birth in 1989, making her eleven years old. Constable Dhaliwal said that he was in shock on hearing this, and he immediately took her into custody to remove her from the area.

 9      Dhaliwal ran her identity on the Canadian police database and found no match. However, when he queried the American information system, he confirmed that she was missing from Oregon. Dhaliwal called for senior detectives to continue the investigation. While he waited with Miss Green, she told him that she came from Portland, through the border, with the three accused. She identified them as Jay, Mister Nice Guy, and Melinda. Melinda's baby was with them. Miss Green said that these three persons would be coming to pick her up at three that afternoon in the area where the police had found her. They would be in a gray vehicle with Oregon plates. The female would be wearing a zebra coat.

 10      Green told Dhaliwal that she had been working as a prostitute for these people for four days. During this time they kept moving her from hotel to hotel to avoid detection by the police. She said that they knew that she was only eleven.

 11      The information concerning the three o'clock meeting was passed to Constables Dormand and See. At a few minutes to three, in the area described, they found the two male accused walking into the rear parking lot of the Waldorf Hotel. They were taken into custody as they entered a bronze Nissan Maxima with Arizona license plates. In the rear seat was seated Ms. Carter, wearing a zebra striped coat. Her child was beside her in a child's car seat.

 12      In the vehicle was found a travel bag with identification for the three accused. In addition, there was a driver's license with the name and date of birth first given by Miss Green. There was also a receipt for a night's stay at the Cecil Hotel in Vancouver, an invoice for three pagers purchased a few days earlier by Walker in Oregon, the pagers themselves, a walkie-talkie, and some muscle relaxant and stay awake tablets. All of these items are exhibits on this voir dire.

 13      Items that were not found by the police, either on the accused or in the vehicle, included any type of firearm or gun, cellular telephones, or new clothes. The total amount of money found was about twenty dollars.

 14      Detectives Payette and Ramos were the officers called in by Dhaliwal. They arrived to interview Miss Green at about three o'clock. Payette stayed to talk to Green while Ramos went to the scene of the apprehension with Dhaliwal. Green told Payette that she was eleven, and that she had come by car from Portland with the three persons she had described to Dhaliwal. Payette formed the impression that she was very tired, but that she was on a "second wind." He believed that she was somewhat under the influence of drugs. She was taller than he expected an eleven-year-old to be.

 15      Payette continued talking to Green for about four hours, after which the videotape statement at issue here was commenced. Green was taken to what the police call their "soft room" - described as looking like a living room with a sofa and chairs. She agreed to provide a statement and when told, "You may have to come to court," she said, "I will."

 16      The interview commenced with Green being given the "KGB warning", the original of which is a signed document and is Exhibit one in these proceedings. The name for the warning originates with the case of Regina v. K.G.B., a decision of the Supreme Court of Canada in 1993 and reported at (1993), 79 C.C.C. (3d) 257. That case will be mentioned later in this decision.

 17      Exhibit one concludes with the following, "Do you (swear) (solemnly affirm) (solemnly declare) that you will tell the truth, the whole truth and nothing but the truth?" Payette said that after he read that portion, Green signed in the signature space. However, the signature of the Commissioner of Oaths was not affixed until after the interview was completed and Payette encountered this person outside the interview room. Green was not present for this.

 18      During the interview, as will be noted upon examination of Exhibit three, Miss Green alleged assaults by the accused and by prostitution customers. She also described being thrown from a moving vehicle. The police noted no injury of any type upon her person.

 19      Following the interview Miss Green was taken by the social worker, Miss Zilke, to a hotel near the Vancouver International Airport. Vancouver police contacted the Portland authorities and arranged to return Miss Green to their Portland counterparts. The next day, Miss Zilke and Miss Green flew to Portland and Miss Green was taken away by the Portland authorities. She has had no direct contact since with any members of the Vancouver investigation team.

 20      In the interim between the arrest of the three accused and the hearing of this matter, two detectives from Portland have visited Vancouver to obtain information concerning the investigation from their end. On May 16, 2001, the three accused were indicted in the United States District Court for the District of Oregon with five counts:

1.

 

Conspiracy to Transport a Minor.

 

2.

 

Transportation of a Minor.

 

      3. Conspiracy to Transport a Person for Prostitution.

4.

 

Transportation of a Person for Prostitution.

 

5.

 

Travel for Prostitution Purposes.

 

 21      Detective Payette attempted to arrange for the return of Miss Green to give evidence in these proceedings. On July 5, 2001, he contacted Portland police and was directed to contact the foster mother of Miss Green, Ms. B.T., for whom he was given a telephone number. When Payette telephoned that number he spoke to a person who identified herself as Ms. B.T., the foster mother of Miss Green. Ms. B.T. said that it was not in the best interests of Miss Green to testify and be cross-examined, and she would not permit Payette to contact Miss Green.

THE NATURE OF THE APPLICATION

 22      The Crown is not calling Miss Green as a witness. Instead, the Crown is asking that the court accept the videotape of her statement to the police as necessary and reliable evidence.

 23      The law generally requires that the best evidence be presented concerning a matter at issue before the court. Where a document is at issue, the original of that document is the best evidence and use of a copy usually requires an explanation concerning the absence of the original. Where acts and incidents are at issue, as here, evidence usually takes the form of testimony from those who witnessed the acts and incidents. With modern technology, courts can sometimes witness events themselves. Tape recordings of accused persons conspiring on the telephone are now often used as evidence. The court may view videotapes taken during bank robberies and other physical encounters. The experience so far has been that permitting the court to witness the events directly by videotape hardly expedites the court proceedings.

 24      The law has resisted hearing second hand evidence. The classic example of this is where a witness tells the court not what they saw themselves, but what another person had apparently seen. This is the situation where television lawyers leap to their feet and shout, "Objection - hearsay!" Hearsay statements, which are statements made outside the courtroom and repeated in court for their truth, are generally excluded.

 25      There are many reasons for this exclusion. In the television example, the person who heard the story out of court and is repeating it in court may not have heard it correctly. Or their recollection may be incorrect. There is a party game where a story is repeated through a series of participants and usually comes out quite differently from its original version; this demonstrates the problem with such hearsay. We do not have this problem in the present case. The evidence presented to the court is not from another person who heard it from Miss Green, but from Miss Green herself who professes to have taken part in and witnessed the incidents relating to the charges.

 26      But we are still dealing with a statement made out of court being presented for its truth, and we must consider other problems related to hearsay statements. When the person who made the statement is not before the court, they cannot be cross-examined. Denying this to the accused is a significant departure. Aside from cross-examination, the right to generally confront an accuser is an implicit value in the common law and has even been enshrined in the American Constitution.

 27      Where a witness does not appear before the court, the ability to assess the credibility of that witness is impaired. In the television example, the trier of fact would have to consider whether the witness in court relaying the story was credible, and whether the person who told them the story was credible - often an impossible task. In the present case, we need have no concern about an intervenor but there is still an impairment of the ability to assess Miss Green's credibility. When the videotape is viewed it is very difficult to see any of the usual cues used in assessing credibility, particularly since it was shot from such a distance.

 28      The general rule is that hearsay is excluded as evidence. Like any good rule, there are exceptions - many of them. They have evolved over the centuries with the common law and a good part of law school is spent considering the more important exceptions. Perhaps the most dramatic exception is the dying declaration, where the court concludes that the statement was likely true in light of the speaker contemplating going to meet our maker.

 29      Certainly the most common example of an exception to the hearsay rule would be the confession. Where an accused has made a statement out of court that is an admission against penal interest, the law assumes it is likely to be the truth as long as it was made voluntarily, and not prompted by threats, inducements, or under an atmosphere of oppression. The police may repeat such confessions in court even though they are hearsay.

 30      In addition to the many common law exceptions to the hearsay rule, Parliament has enacted many statutory exceptions. An example is where a Breathalyzer technician does not appear before the court but prepares a certificate that is a statement of his evidence and this is filed with the court. By a similar procedure a drug analyst can give evidence to the court of the results of the chemical analysis of suspected drugs.

 31      Where the exceptions to the hearsay rule have been statutory the courts have generally insisted upon strict compliance with the statutory provisions. Where the exceptions have been common law, the policy has often been less strict and more inclusory. But the present case is neither a statutory nor a common law exception to the hearsay rule. The nature of this application is to ask that a hearsay statement be admitted on the basis of principles promulgated by the Supreme Court of Canada in Regina v. Khan, (1990) 59 C.C.C. (3d) 92.

THE PRINCIPLED APPROACH - NECESSITY AND RELIABILITY

 32      In Regina v. Khan, (supra), the Supreme Court of Canada dealt with a case where a physician was alleged to have assaulted a three and one-half year old child. The case is not only important for going beyond the accepted common law and statutory exceptions to the hearsay rule, but for its consideration of the circumstances of children. At issue was a statement made by the child to her mother after being with the doctor; could the mother relate the statement to the court? At page 100, McLachlin J., now the Chief Justice, states:

 

The question then is the extent to which, if at all, the strictures of the hearsay rule should be relaxed in the case of children's testimony. The issue is one of great importance in view of the increasing number of prosecutions for sexual offences against children and the hardships that often attend requiring children to retell and relive the frequently traumatic events surrounding the episode in a long series of encounters with parents, social workers, police and finally different levels of courts.

 

 

The hearsay rule has traditionally been regarded as an absolute rule, subject to various categories of exceptions, such as admissions, dying declarations, declarations against interest and spontaneous declarations. While this approach has provided a degree of certainty to the law on hearsay, it has frequently proved unduly inflexible in dealing with new situations and new needs in the law. This has resulted in courts in recent years on occasion adopting a more flexible approach, rooted in the principle and the policy underlying the hearsay rule rather than the strictures of traditional exceptions.

 

 

This Court took such an approach in Ares v. Venner, [1970] S.C.R. 608. The plaintiff was suing for medical malpractice which had resulted in amputation of his leg for gangrene. He wanted to introduce hospital records containing entries by nurses as evidence of the onset of symptoms which the doctor should have noticed and treated. He was met with the objection that the records were hearsay and he should call the nurses who made the notations. But he could not prove which nurse had made which entry, which made that approach impossible.

 

 

This Court held that the records should be admitted, notwithstanding that on the traditional rules, they were inadmissible. The Court accepted (at p. 624) the proposition that "[t]he common law is moulded by the judges and it is still their province to adapt it from time to time so as to make it serve the interests of those it binds", particularly in the field of procedural law: per Lord Donovan, dissenting, in Myers v. Director of Public Prosecutions, [1965] A.C. 1001, at p. 1047. Hall J. at p. 624 quoted the following passage from the reasons in Myers of Lord Pearce, dissenting (at pp. 1040-41):

 

 

 

I find it impossible to accept that there is any "dangerous uncertainty" caused by obvious and sensible improvements in the means by which the court arrives at the truth. One is entitled to choose between the individual conflicting obiter dicta of two great judges and I prefer that of Jessel M.R. His dictum was as follows, 1 P.D. 154, 241: "Now I take it the principle which underlies all these exceptions is the same. In the first place, the case must be one in which it is difficult to obtain other evidence, for no doubt the ground for admitting the exceptions was that very difficulty. In the next place the declarant must be disinterested; that is, disinterested in the sense that the declaration was not made in favour of his interest. And, thirdly, the declaration must be made before dispute or litigation, so that it was made without bias on account of the existence of a dispute or litigation which the declarant might be supposed to favour. Lastly, and this appears to me one of the strongest reasons for admitting it, the declarant must have had peculiar means of knowledge not possessed in ordinary cases." On that expression of principle he admitted the extension which has been acted on ever since in the Probate Division.

 

 

 

In the result, this Court concluded that the nurses' records should be admitted, noting however that the admission "should, in no way, preclude a party wishing to challenge the accuracy of the records or entries from doing so" and adding that "the nurses were present in court and available to be called as witnesses if the respondent had so wished" (p. 626).

 

 

Lord Pearce's four tests may be resumed in two general requirements: necessity and reliability. The child's statement to the mother in this case meets both these general requirements as well as the more specific tests. Necessity was present, other evidence of the event, as the trial judge found, being inadmissible. The situation was one where, to borrow Lord Pearce's phrase, it was difficult to obtain other evidence. The evidence also bore strong indicia of reliability. T. was disinterested, in the sense that her declaration was not made in favour of her interest. She made the declaration before any suggestion of litigation. And beyond doubt she possessed peculiar means of knowledge of the event of which she told her mother. Moreover, the evidence of a child of tender years on such matters may bear its own special stamp of reliability. As Robins J.A. stated in the Court of Appeal (at p. 210):

 

 

Where the declarant is a child of tender years and the alleged event involves a sexual offence, special considerations come into play in determining the admissibility of the child's statement. This is so because young children of the age with which we are concerned here are generally not adept at reasoned reflection or at fabricating tales of sexual perversion. They, manifestly, are unlikely to use their reflective powers to concoct a deliberate untruth, and particularly one about a sexual act which in all probability is beyond their ken.

 

 33      And at page 104, McLachlin J. outlines the new rules:

 

The first question should be whether reception of the hearsay statement is necessary. Necessity for these purposes must be interpreted as "reasonably necessary". The inadmissibility of the child's evidence might be one basis for a finding of necessity. But sound evidence based on psychological assessments that testimony in court might be traumatic for the child or harm the child might also serve. There may be other examples of circumstances which could establish the requirement of necessity.

 

 

The next question should be whether the evidence is reliable. Many considerations such as timing, demeanour, the personality of the child, the intelligence and understanding of the child, and the absence of any reason to expect fabrication in the statement may be relevant on the issue of reliability. I would not wish to draw up a strict list of considerations for reliability, nor to suggest that certain categories of evidence (for example the evidence of young children on sexual encounters) should be always regarded as reliable. The matters relevant to reliability will vary with the child and with the circumstances, and are best left to the trial judge.

 

 

In determining the admissibility of the evidence, the judge must have regard to the need to safeguard the interests of the accused. In most cases a right of cross-examination, such as that alluded to in Ares v. Venner, would not be available. If the child's direct evidence in chief is not admissible, it follows that his or her cross-examination would not be admissible either. Where trauma to the child is at issue, there would be little point in sparing the child the need to testify in chief, only to have him or her grilled in cross-examination. While there may be cases where, as a condition of admission, the trial judge thinks it possible and fair in all the circumstances to permit cross-examination of the child as the condition of the reception of a hearsay statement, in most cases the concerns of the accused as to credibility will remain to be addressed by submissions as to the weight to be accorded to the evidence, and submissions as to the quality of any corroborating evidence.

 

 

I add that I do not understand Ares v. Venner to hold that the hearsay evidence there at issue was admissible where necessity and reliability are established only where cross-examination is available. First, the Court adopted the views of the dissenting judges in Myers v. Director of Public Prosecutions which do not make admissibility dependent on the right to cross-examine. Second, the cross-examination referred to in Ares v. Venner was of limited value. The nurses were present in court at the trial, but in the absence of some way of connecting particular nurses with particular entries, meaningful cross-examination on the accuracy of specific observations would have been difficult indeed.

 

 

I conclude that hearsay evidence of a child's statement on crimes committed against the child should be received, provided that the guarantees of necessity and reliability are met, subject to such safeguards as the judge may consider necessary and subject always to considerations affecting the weight that should be accorded to such evidence. This 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.

 

 

I conclude that the mother's statement in the case at bar should have been received. It was necessary, the child's viva voce evidence having been rejected. It was also reliable. The child had no motive to falsify her story, which emerged naturally and without prompting. Moreover, the fact that she could not be expected to have knowledge of such sexual acts imbues her statement with its own peculiar stamp of reliability. Finally, her statement was corroborated by real evidence.

 

 34      This new principled approach to hearsay exceptions, going beyond the categories previously referred to, was re-affirmed by the Supreme Court in Regina v. Smith, (1992) 75 C.C.C. (3d) 257, where at page 270, Lamer C.J.C., discussed Regina v. Khan, and continued:

 

The movement towards a flexible approach was motivated by the realization that, as a general rule, reliable evidence ought not to be excluded simply because it cannot be tested by cross-examination. The preliminary determination of reliability is to be made exclusively by the trial judge before the evidence is admitted.

 

 

This Court's decision in Khan, therefore, signalled an end to the old categorical approach to the admission of hearsay evidence. Hearsay evidence is now admissible on a principled basis, the governing principles being the reliability of the evidence, and its necessity. A few words about these criteria are in order.

 

 

The criterion of "reliability" -- or, in Wigmore's terminology, the circumstantial guarantee of trustworthiness -- is a function of 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", i.e., a circumstantial guarantee of trustworthiness is established. The evidence of the infant complainant in Khan was found to be reliable on this basis.

 

 

The companion criterion of "necessity" refers to the necessity of the hearsay evidence to prove a fact in issue. Thus, in Khan, the infant complainant was found by the trial judge not to be competent to testify herself. In this sense, hearsay evidence of her statements was necessary, in that what she said to her mother could not be adduced through her. It was her inability to testify that governed the situation.

 

 

The criterion of necessity, however, does not have the sense of "necessary to the prosecution's case". If this were the case, uncorroborated hearsay evidence which satisfied the criterion of reliability would be admissible if uncorroborated, but might no longer be "necessary" to the prosecution's case if corroborated by other independent evidence. Such an interpretation of the criterion of "necessity" would thus produce the illogical result that uncorroborated hearsay evidence would be admissible, but could become inadmissible if corroborated. This is not what was intended by this Court's decision in Khan.

 

 

As indicated above, the criterion of necessity must be given a flexible definition, capable of encompassing diverse situations. What these situations will have in common is that the relevant direct evidence is not, for a variety of reasons, available. Necessity of this nature may arise in a number of situations.

 

 35     And at page 272 he said further,

 

In my view, it would be neither sensible nor just to deprive the jury of this highly relevant evidence on the basis of an arcane rule against hearsay, founded on a lack of faith in the capacity of the trier of fact properly to evaluate evidence of a statement, made under circumstances which do not give rise to apprehensions about its reliability, simply because the declarant is unavailable for cross-examination. Where the criteria of necessity and reliability are satisfied, the lack of testing by cross-examination goes to weight, not admissibility, and a properly cautioned jury should be able to evaluate the evidence on that basis.

 

 36      Regina v. K.G.B. (1993), 79 C.C.C. (3d) 257 (S.C.C.) is the most thorough examination of hearsay statements made by young people on videotape. Lamer C.J.C. again discusses "the new admissibility rule" and the requirement for admissibility based on reliability and necessity. He deals with the reliability of hearsay statements and consideration of the absence of an oath, no "presence" of the witness, and the lack of cross-examination. Each was recognised as important. Lamer C.J.C. held that there are compelling reasons to prefer statements made under oath or solemn affirmation. He recognised that triers of fact rely upon many verbal and non-verbal cues in assessing credibility that are facilitated by the presence of the witness. He said the lack of contemporaneous cross-examination is the most important of the hearsay dangers. In conclusion, with regard to reliability, he said at page 294:

 

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.

 

 37      It was based on these statements of the Supreme Court of Canada that the police took what they termed a K.G.B. statement from Miss Green. The statement was videotaped, and intended to be under oath. The Crown agrees that it was not under oath.

 38      The final case I will discuss from the Supreme Court of Canada concerning the principled approach is that of Regina v. Starr, (2000) 147 C.C.C. (3d) 449. Iacobucci J. wrote for the majority and at page 534 he stated:

 

At the stage of hearsay admissibility the trial judge should not consider the declarant's general reputation for truthfulness, nor any prior or subsequent statements, consistent or not. These factors do not concern the circumstances of the statement itself. Similarly, I would not consider the presence of corroborating or conflicting evidence. On this point, I agree with the Ontario Court of Appeal's decision in R. v. C. (B.) (1993), 12 O.R. (3d) 608; see also Idaho v. Wright, 497 U.S. 805 (1990). In summary, under the principled approach a court must not invade the province of the trier of fact and condition admissibility of hearsay on whether the evidence is ultimately reliable. However, it will need to examine whether the circumstances in which the statement was made lend sufficient credibility to allow a finding of threshold reliability.

 

 39      This is certainly a new development in the assessment of the reliability of a hearsay statement. In Regina v. Khan it is clear that the Supreme Court of Canada did consider other corroborating evidence in concluding that the child's statement was reliable. In particular, confidence was placed in the fact that the child alleged that the accused "peed" and that a spot of semen was found on her clothing. In concluding her discussion of the matter, McLachlin J. stated, "Finally, her statement was corroborated by real evidence." This cannot be reconciled with Starr.

 40      It should be noted that this new development in Starr is consistent with the approach of the Supreme Court of the United States. In Idaho v. Wright, (1990), 497 U.S. 805, the court was concerned with circumstances similar to those in Khan. At issue was the admissibility of a statement made by a young child to her doctor, where a sexual assault was described. The court found in Idaho v. Wright that the actual circumstances in which the statement was made lacked indications of reliability because the interview was not recorded on videotape and the doctor asked the child leading questions. The court considered whether other "external" factors could be used to corroborate the child's statement, such as physical injuries, opportunity of the accused, and the evidence of the sister of the child.

 41      Justice O'Connor concluded that a statement made in unreliable circumstances could not be rendered admissible through the "bootstrapping" of other reliable corroborating evidence. She listed four factors, inherent to the statement itself, as properly related to reliability of hearsay statements by child witnesses:

1.

 

Spontaneity and consistent repetition;

 

2.

 

The mental state of the person making the statement;

 

3.

 

Use of terminology unexpected of a child of similar age;

 

4.

 

Lack of motive to fabricate.

 

 42      I must point out the in the Wright case, the issue was whether the court could look to other evidence to support the reliability of the hearsay statement. With regard to Miss Green's videotaped statement I am considering the submission of defense counsel that I should look to other evidence that contradicts the statement of Miss Green, and conclude that her statement is unreliable. The principle, however, is the same.

 43      The decision of Idaho v. Wright was recently reaffirmed by the U.S.S.C. in Lilly v. Virginia (1999), 119 S.Ct. 1887.

 44      I conclude from the Starr Case that I must now make a clear distinction between threshold reliability and ultimate reliability when considering whether the videotape statement of Green is admissible. I will consider the statement itself and the circumstances under which it was given in determining whether there is threshold reliability. If the statement is admitted as evidence on the trial, it will then be weighed along with the other evidence on the trial to determine whether it is ultimately reliable and credible.

 45      In conclusion, I must consider whether Green's videotape statement is necessary and reliable. Reliable in this sense is a threshold determination of whether there are circumstantial guarantees of reliability of the statement. The statement itself and the circumstances under which it was taken must be considered. In particular, whether the statement was taken under oath or solemn affirmation, whether it was videotaped in its entirety, and whether there is an opportunity for cross-examination are all issues I must consider. I may not consider other evidence heard on the trial in measuring the reliability of the statement.

RELIABILITY

THE OATH

 46      The interview with Green commenced with her being read the KGB warning, Exhibit one in these proceedings. The warning asserts that the statement is to be taken under oath and that it is an offence to make a false statement. It continues with a warning that the witness may be called to give evidence at trial. It concludes by noting that the statement is voluntary. Concerning each of these points, Miss Green was then asked if she agreed, and she did. The written warning then provides, "Do you (swear) (solemnly affirm) (solemnly declare) that you will tell the truth, the whole truth and nothing but the truth?" In fact, when it came to this part of the taped interview, Payette said, "Do you swear that you will tell the truth, the whole truth and nothing but the truth?" Miss Green said, "Yes," and signed the document affirming this.

 47      This was not an oath. Payette had no authority to administer an oath. If it were an oath, it should invoke some religious ritual, such as placing the hand on the Bible or other religious tome. It should make some reference to a deity, such as, "...so help you, God?"

 48      There is another complication in this case. If Miss Green were to be properly administered an oath, an inquiry would have to be conducted because she is apparently under the age of fourteen years. A determination would have to be made to first see if she could communicate the evidence. If she could, an inquiry would have to determine if she understood the significance of an oath or solemn affirmation. If she did, she could then swear an oath or take a solemn affirmation. If she did not understand the significance of either, her evidence could be heard on her promise to tell the truth. None of this procedure was followed with Miss Green.

 49      But that is not the end of the matter. Miss Green was told the statement was to be under oath and a form of oath was read to her. During these preliminaries she was alert and responsive, and stated that she believed she was under oath. What followed lacked the formality of a court proceeding but she was respectful of her questioner and receptive to his questioning. In conclusion, it is of some significance that she believed she was under oath, even if that was not the case.

VIDEOTAPING

 50      Most of the official statement given by Miss Green was videotaped. I conclude that this was substantial compliance with the mandate of the K.G.B. Case. However, there was a period of about six hours prior to the taking of this statement when Miss Green was with the authorities and the same matters were also discussed. This began with her meeting Dhaliwal on the street and continued for a few hours while she waited with Payette and Zilke before the statement was taken. Much of this time was explained by the witnesses and I am satisfied that Miss Green was not contaminated by outside information. Nor did she say anything that was at odds with what was contained in her videotaped statement. I do keep in mind that the K.G.B. Case suggests the interview with the witness should be taped in its entirety and failure to do so is another factor in considering reliability. I am also aware that in the Starr Case the court said, in the passage previously quoted:

 

At the stage of hearsay admissibility the trial judge should not consider the declarant's general reputation for truthfulness, nor any prior or subsequent statements, consistent or not.

 

 

CROSS-EXAMINATION

 51      Where cross-examination is not a possibility, as in this case, it is a factor in assessing the threshold reliability of Miss Green's statement that all of her assertions are untested by cross-examination and will remain so.

 52      Cross-examination may come at different times. Had Miss Green been confronted with cross-examination at the time of giving the statement, an easier assessment could be made of the statement's reliability. If she were to be cross-examined after the videotape was tendered, the court would have the comfort of knowing that at some point the statement would face that test. I make that observation knowing that the Starr Case, on strict reading, does not permit me to peek ahead and contemplate measuring the statement against other evidentiary developments.

 53      The absence of cross-examination is very significant but, like the issue with the oath, there is another aspect to this. Cross-examination is there to guarantee reliability. The prospect of cross-examination is also some guarantee of reliability. At the time of the KGB warning Miss Green was told, and she acknowledged, that she could be a witness in a trial concerning the events described in the statement. I conclude from the context of the whole statement that she was bright enough to understand and did understand that this meant she could be challenged at a later time about anything she said in the statement. This is relevant on the issue of whether there is cross-examination.

OTHER RELIABILITY ISSUES

 54      Payette questioned Green for most of the interview, and then Ramos took over. I have carefully considered the nature of their interrogation. Payette told the court that he had the pre-conceived idea that Green was telling the truth, but this was nowhere apparent during the questioning. On rare occasions, the questioners had to prompt Miss Green by suggesting options for answers, but in the vast majority of cases the questions were open and did not lead her in any way. The prompting was less than is often necessary with adult witnesses in court. I conclude that the interview was almost exemplary - the examination was objective and non-leading.

 55      The cases discussed above mention the "presence" of the witness as important; either personally before the court or by videotape. This permits the trier of fact to assess apparent credibility and look for the cues and nuances one observes in a witness. This videotape does not permit that. The image does not convey to the viewer any impression of facial expressions because of the distance of the camera from the subject. The viewer is in the position of drawing more conclusions from Miss Green's voice than from her image. The impression she leaves is that she could not possibly be eleven years old; more likely, she must be in her mid teens. The timbre and tone of her voice leave this impression. Her vocabulary, although hardly sophisticated, is that of a child older than eleven. Her knowledge of street life and the world in general is almost frightening. These impressions are left with the viewer, so she certainly does have some "presence", although an improved image would facilitate a better assessment.

 56      When Green's statement is examined in total, it passes the test of consistency. There are no contradictions in what she says, and very few vagaries in her responses that might indicate avoidance on her part. This is the case even though she provides considerable detail in her answers. She is generally responsive and at times even anticipates a question and provides the answer before the question is finished. There was certainly no hesitation on her part nor any type of studied response. The body of evidence provided by her statement is just the sort of evidence courts routinely rely on when the evidence is given viva voce.

 57      The statement must be examined to see if it evidences a motive on Green's part to fabricate her story. The statement was taken under circumstances where she had been found on the street prostituting herself. She realized that this is an offence; in fact, she said in her statement that she had to leave Portland because she felt her prostitution there was becoming apparent to the authorities. When Dhaliwal was investigating her, she demonstrated an awareness that she was in trouble by giving him a false name and date of birth. There is the possibility that Miss Green was caught in a compromising situation by Dhaliwal and decided to deflect attention from herself by blaming others for her acts. That is a possibility, but there are other factors in the statement contradicting that theory.

 58      In fact, Green was never under any threat of being charged with anything. As an eleven-year-old, she could not even be charged as a young offender. She likely would have no knowledge of Canadian law, but Payette told her that she was not being investigated and would not be charged; she could be a witness.

 59      If her motive was to blame others, and deflect blame from herself, the statement does not do this. She told Payette that she was a runaway and had been a prostitute in Portland. She described using false identification there and in Canada. She told Payette about her use of drugs. Her narrative of the events bringing her to Canada and leading to her street prostitution casts her as an accomplice - not a victim.

 60      Her condemnation of the three accused is limited. She said that they assaulted her but the events she described are hardly aggravated. She told of other, much more serious assaults, at the hands of her customers. Her description of her relationship with the accused suggests that much of what she did was with her consent and agreement, and not forced upon her by the three accused.

 61      Another sub-issue of reliability is the state of mind of the declarant. Miss Green said that she had only four hours sleep during her four days in Canada. During her time here she had used various drugs - LSD, methamphetamine, marijuana and cocaine. Payette formed the impression that she was somewhat under the influence of drugs but this is not apparent to the viewer of the videotape. I must conclude from viewing the tape that the residual effect of drugs, combined with sleep deprivation, had little or no effect on her giving the statement.

 62      My conclusion concerning inferences to be drawn from the statement itself is that it has the ring of truth. The story told by Miss Green is compelling. In fact, it is a remarkable story and it is even more remarkable that Miss Green is apparently so young. It may be that, measured against other evidence, a court would have to reject the statement but on the issue of threshold reliability it is the sort of evidence a court may rely on in making findings of fact. Other than sounding like the truth, does it satisfy the test generally with regard to threshold reliability?

 63      There are problems. None of the three K.G.B. Case factors are satisfied without some qualification. Each of the other issues I have discussed has arguments both ways. But there is a definite trend to be inclusory when considering reliability and to leave it to the trier of fact to consider the fallibility of hearsay statements. On balance, I conclude that this statement meets the threshold test of probable reliability.

 64      I must hasten to add that I do not conclude that the statement is credible, or the truth - it is simply reliable in the legal sense as defined by the line of cases I have discussed.

 65      I must also point out that in assessing reliability I have not considered some of the points made by defense counsel. I have also ignored some points made by Crown counsel. This is because of my interpretation of the Starr Case. The points made by counsel are good ones and would certainly be relevant in assessing the effect of lack of cross-examination and in measuring the statement of Miss Green against other evidence in the case, as would be done in assessing ultimate reliability.

 66      Those other factors I have not yet considered in assessing the reliability of the statement include:

1.

 

The evidence to the effect that Green had been in Canada for about 36 hours and not four days as she said in her statement.

 

2.

 

The evidence that the time and manner of coming over the border matched the details of Green's statement.

 

3.

 

The evidence that the three accused were found where and when Green said they would be.

 

4.

 

The evidence that a receipt for staying at the Cecil Hotel in Vancouver was found in the vehicle of the accused, confirming this aspect of Green's statement.

 

5.

 

The evidence that no gun was found, although one was mentioned in her statement.

 

6.

 

The evidence that identification (a driver's license) was found in the vehicle that matched the name and birth date first given by Green.

 

7.

 

The evidence that only twenty dollars was found on the accused although Green's statement said she had earned about eight hundred dollars and turned it over to the accused.

 

8.

 

The evidence that the three accused and Carter's baby matched the description given by Green.

 

9.

 

The evidence that the car did not match the description given by Green and that it bore an Arizona, not an Oregon, license plate.

 

10.

 

The evidence that no cellular telephone was found, although one was mentioned in Green's statement.

 

11.

 

The evidence that was not called - no evidence was led by the Crown that pagers seized from the accused worked in this area although Green mentioned use of these in her statement.

 

12.

 

The evidence that no new clothing was found although Green said in her statement they had purchased it.

 

13.

 

The evidence that wake-up and relaxant tablets were found in the vehicle of the accused that matched those described by Green in her statement.

 

14.

 

The evidence that the police saw no injuries on Green, even though she described minor assaults by the accused and more severe assaults by prostitution customers that one would expect would result in injuries.

 

All of this evidence, and more, must be weighed as against Green's videotape statement only once it is ruled admissible as evidence.

NECESSITY

 67      There has been surprising little judicial consideration of this issue compared to the many discussions of reliability. With most of the categorical exceptions to the hearsay rule, necessity was a given because there was clearly no other way of getting the evidence before the court.

 68      Since the Khan Case many of the cases have dealt with the evidence of young children where the hearsay statement was necessary at the time of trial because the child could no longer remember the incidents giving rise to the charge. Another situation has been where the child has not been competent to be a witness, making the hearsay statement necessary. The K.G.B. Case involved a situation where a witness actually testified but refused to adopt an earlier statement given on videotape.

 69      This case is quite different. Miss Green would likely be a competent witness and I am certain that she would still have a good memory of the incidents; she was very bright. The Crown says that the videotape statement is necessary as evidence because Miss Green is absent from Canada and not subject to the jurisdiction of this court.

 70      In support of this argument, the Crown has cited many cases dealing with Section 643 of the Criminal Code which provides:

 

643.(1) Where, at the trial of an accused, a person whose evidence was given at a previous trial upon the same charge, or whose evidence was taken in the investigation of the charge against the accused or upon the preliminary inquiry into the charge, refuses to be sworn or to give evidence, or if facts are proved upon oath from which it can be inferred reasonably that the person

 

 

(a)

 

is dead,

 

(b)

 

has since become and is insane,

 

(c)

 

is so ill that he is unable to travel or testify, or

 

(d)

 

is absent from Canada,

 

 

 

and where it is proved that his evidence was taken in the presence of the accused, it may be read as evidence in the proceedings without further proof, if the evidence purports to be signed by the judge or justice before whom it purports to have been taken, unless the accused proves that it was not in fact signed by that judge or justice or that he did not have full opportunity to cross-examine the witness.

 

 

(2)

 

Evidence that has been taken on the preliminary inquiry or other investigation of a charge against an accused may be read as evidence in the prosecution of the accused for any other offence upon the same proof and in the same manner in all respects, as it might, according to law, be read in the prosecution of the offence with which the accused was charged when the evidence was taken.

 

(3)

 

For the purposes of this section, where evidence was taken at a previous trial of an accused in the absence of the accused, who was absent by reason of having absconded, he shall be deemed to have been present during the taking of the evidence and to have had full opportunity to cross-examine the witness.

 

 71      I conclude that cases concerning this section of the Criminal Code are not relevant in determining the issue of necessity mandated by the Khan Case. This provision is a special statutory exception to the hearsay rule and it delineates exactly when such preliminary hearing evidence may be used. It sets out conditions precedent to the reception of such evidence. Necessity is not a condition precedent - only absence from Canada is required. There may even be circumstances where this provision could be utilized for convenience and not necessity; the cases reflect that.

 72      The more relevant cases concerning the issue of necessity are those that rely on the Khan Case. All such cases speak in terms of "reasonable necessity"; it is certainly not a question of absolute necessity. One such case is R. v. Giang, a decision of MacKenzie J. of this court reported in [1995] B.C.J. No. 2864. At paragraph 34 is a summary of the facts, and perhaps too onerous a burden placed on the Crown:

 

Here, the complainant was not incapable of testifying. He simply did not respond to a subpoena because, it can reasonably be inferred, he is reluctant to testify. In such circumstances, I find the Crown has not met the first test on a balance of probabilities of reasonable necessity.

 

 73      In R. v. Pilcher [1998] B.C.J. No. 3185, de Villiers J., the issue of necessity was also before this court. The court said at paragraph 34:

 

I hold that the admission of such evidence is reasonably necessary where the party seeking its admission satisfies the court that the witness cannot, with the exercise of due diligence, be found and brought to court.

 

 74      That statement is a most sensible articulation of the onus on the Crown in such cases. Has it been demonstrated, on the balance of probabilities, that Crown authorities have exercised due diligence in attempting to secure the attendance of Miss Green in court?

 75      I should examine in some detail what has happened here and assess the relationship of the Canadian and American authorities involved in the case.

 76      At the time of giving the statement, Green was told that she might have to return to give evidence. She said that she understood. She was asked by Payette if she would return to give evidence. She said that she would.

 77      Upon Green's apprehension, she was put in the company of a social worker. The Portland authorities were contacted and steps were taken immediately to return her to Portland. The social worker accompanied Green to the Vancouver International Airport and the next day the two returned to Portland where Green was turned over to the authorities.

 78      It is my conclusion that the best interests of Miss Green prevailed during her handling by local authorities. Her return to the Portland caregivers could not have been more expeditious. It must be assumed that this responsibility on the part of the Vancouver authorities would be appreciated by their American counterparts.

 79      After Green was returned, two Portland detectives visited Vancouver and were assisted with their investigation. Detective Ramos, Payette's partner, was responsible for liaising with them. After their return to Portland, the three accused before this court were indicted in Portland on related charges. Once again, it would be reasonable to expect this cooperation would be reciprocated. In addition, the visit by the detectives and the resulting charges demonstrates that the American authorities are interested in holding the three accused to account for their dealings with Miss Green.

 80      Prior to this trial commencing, the Crown filed a notice of an intention to hear the evidence of Miss Green from Portland by video conferencing. That was abandoned without explanation, although Court Services took steps to make it possible.

 81      On July 5, 2001, Payette contacted Portland police and was directed to contact the foster mother of Miss Green. When Payette telephoned the number he had been given he spoke to a person who identified herself as the foster mother. She said that it was not in the best interests of Miss Green to testify and be cross-examined, and she would not permit Payette to contact Miss Green.

 82      That was all that was done. The Crown now takes the position that Green is outside the jurisdiction of this court and there is nothing more that can be done to secure her evidence. Has this been due diligence?

 83      The Vancouver authorities are entitled to expect some cooperation from the American authorities. I have stated why. Such cooperation has not been sought. It would likely be forthcoming. The Portland police could be asked to intervene on behalf of the Vancouver police and attempt to contact Miss Green directly. Green told Payette she would return. The foster mother probably has very limited authority with regard to Miss Green. The Oregon authorities responsible for the apprehension of Miss Green and for placing her with the foster mother should be contacted. The proposal could be made to any or all of these contacts that Miss Green's evidence might be given in person, or might be taken by a video link between Portland and Vancouver, or might be taken by commission evidence being taken in Portland on behalf of the Vancouver court.

 84     If an approach through the police were unsuccessful, similar approaches could be made through social work channels, or through Crown counsel contacting their counterparts, the United States Attorneys who presented the indictment to the Grand Jury for the District of Oregon.

 85      Miss Green was willing to come. She is apparently competent to testify, either by oath, solemn declaration, or promise to tell the truth. She showed a maturity that would indicate she could handle the trauma and stress of a court appearance as well as any adult. Much, much more should have been done to attempt to secure her attendance by one of the means I have suggested. Perhaps if all of that were done, it would be unsuccessful. But at this stage, the Crown has not met the onus of showing on balance that Green's videotape statement is reasonably necessary and that due diligence has been exercised in attempting to secure her personal attendance.

 86      For those reasons, I must reject the application to tender Exhibit three as an exhibit on the trial. The trial will proceed without that evidence.

KITCHEN PROV. CT. J.

QL Update:  20010907
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