R. v. Kanagalingam, 2014 ONCA 727

Keywords: Criminal law; threshold and ultimate reliability; K.G.B. statements; Vetrovec jury cautions.

Synopsis: The Appellant was convicted of multiple counts of fraud-related offences which arose out of a debit/credit card PIN pad fraud scheme. Prior to his trial, four other men charged in relation to the same scheme plead guilty to charges and each entered an agreed statement of facts implicating the Appellant in the alleged crimes. At the Appellant’s trial, each of the four men recanted portions of their statements which were later admitted as evidence of the truth of their contents pursuant to an R. v. K.G.B., [1993] 1 SCR 740 application. The Appellant appealed to the Ont. C.A. and argued the trial judge erred by 1) admitting three agreed statements of fact, and 2) providing the jury with an inadequate Vetrovec warning concerning the testimony of unsavoury witnesses. Appeal granted.

Importance: The C.A. held the trial judge made no error in admitting the agreed statements of fact. The Vetrovec jury caution however, was inadequate and merited the order of a new trial. The Court explained substantive reliability of a statement will exist when the circumstances surrounding the making of the statement provide guarantees of reliability and trustworthiness: R. v. Khelawon, [2006] 2 S.C.R. 787, at paras. 62-63; R. v. Youvarajah, 2013 SCC 41, at para. 30. Three general indicators of threshold reliability justifying admission of a statement include “(i) the statement is made under oath or affirmation following a warning on the significance of the oath and the availability of sanctions for giving a false statement; (ii) the statement is videotaped in its entirety; and (iii) the opposing party has a full opportunity to cross-examine the witness respecting the statement” (at para. 32). Where threshold reliability is satisfied the trial judge remains with residual discretion to exclude statements if there are voluntariness concerns “or other improper factors that would tend to bring the administration of justice into disrepute” (at para. 37). Although the witnesses in the Appellant’s case were unsavoury, there is no rule requiring a judge to exclude the admission of a statement where there may have been a motivation on the part of the witness to lie. Moreover, the Supreme Court of Canada decision in Youvarajah does not “stand for the proposition that there is a per se rule requiring the exclusion of K.G.B. statements at the threshold stage where there are circumstances that may ‘undermine the veracity of the indicia of reliability’” (at para. 46). In the Appellant’s case threshold reliability requirements were met and the judge’s decision, absent an error in principle, is entitled to deference (at para. 47). The Vetrovec jury caution however, was inadequate in fulfilling its purpose “to alert the jury to the danger of relying on the unsupported evidence of unsavoury witnesses and to explain the reasons for special scrutiny of their testimony” (at para. 52 citing R. v. Khela, 2009 SCC 4, at para. 11). In the Appellant’s case there were compelling reasons underlying the need for an instruction of added scrutiny concerning the testimony of the four other witnesses implicated in the crimes (at para. 54 and 58). The Court concluded:

…because [the witnesses] recanted their earlier statements implicating the appellant, the jurors could only have convicted the appellant if they accepted some or all of those earlier K.G.B. statements. Although I have concluded that the K.G.B. statements were admissible for purposes of threshold reliability, the question of their ultimate reliability was quite another matter. Their assessment for that purpose warranted a healthy skepticism…I am not persuaded that the legal nuances underlying that inherent unreliability would be “self-evident” and, therefore, that a lay jury exercising its common sense – however intelligent – would be able readily to “appreciate the significance” of factors bearing on the K.G.B. analysis for those purposes without careful legal guidance” (at paras. 64-65).

Counsel for Appellant: Ian Smith and Amy Ohler (Fenton, Smith Barristers, Toronto)

Counsel for Respondent: Tracy Kozlowski (Crown Law Office Criminal, Toronto)

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