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| John L. Hill |
A student, referred to as the complainant, was upset with fellow student Yves Caleb Charles for bothering the complainant’s girlfriend. Charles was angered by the accusation but seemed to calm down. Later in the day, the complainant entered a school washroom and felt an object pressed against his hip while washing his hands. Looking down, he realized it was a gun.
The complainant believed Charles was his aggressor and the person who indicated that the bullet was ready to be fired. Two other youths in the washroom, referred to as K.A. and Fares, later caught up with the complainant and assured him the firearm was a fake. K.A. reported the matter to the police. Charles was charged with assault with a weapon, using an imitation firearm in the commission of an assault and uttering threats.
K.A. was also arrested for possession of a firearm for a dangerous purpose, possession of an imitation firearm, carrying a concealed firearm, uttering death threats and assault with a weapon. While detained by the police, K.A. was questioned for about an hour while his mother was present. He gave a written statement witnessing Charles pointing the gun and threatening the complainant. There was no video taken of the interview, and K.A. was never warned about the consequences of making a false statement. He admitted the weapons used were at his residence. Police later found them there.
In a judge-alone trial, the Crown called K.A., hoping he would recount the contents of his statement during his testimony. But at trial, K.A. said he had no memory of the incident. The Crown requested a voir dire to enter K.A.’s written statement as evidence. The trial judge allowed its admissibility, and Charles was convicted.
He appealed first to the Quebec Court of Appeal (R. c. Charles, 2022 QCCA 1013). The majority on the panel hearing his appeal dismissed it. However, Justice Frédéric Bachand issued a strongly worded dissent stating that the out-of-court statement failed to satisfy the threshold reliability of K.A.’s words and actions. Further, the circumstances under which K.A.’s statement was taken offered no assurance of reliability.
The matter was further appealed to the Supreme Court of Canada. The majority of that court also held that the trial judge’s acceptance of K.A.’s written out-of-court statement may have compromised procedural and substantive reliability, as explained in R. v. Bradshaw, [2017] 1 S.C.R. 865, and R. v. Khelawon, 2006 SCC 57. The court’s truth-seeking function relies on a judge’s ability to assess a witness in the courtroom, and there is a danger of giving an out-of-court assertion weight it does not deserve. Substantive reliability is achieved under circumstances that negate the possibility that the declarant was untruthful or mistaken (R. v. Smith, [1992] 2 S.C.R. 915).
The majority noted that K.A. was a participant in the assault on the complainant, and in the written statement, he may have wanted to construct a scenario disclaiming his involvement. Further, with his mother in the room, he may have been incentivized to present himself with more innocence than he deserved. Further, the police finding weapons at the location K.A. described does not corroborate his truthfulness. Admitting possession allowed him to avoid charges involving a greater degree of participation in the assault.
The majority found that the evidence against Charles was not so overwhelming that the curative proviso should be invoked. The Crown did not ask for such relief. Instead, the majority quashed the conviction and ordered a new trial.
While the majority judgment defines strict guidelines for assessing substantive reliability, the minority opinion suggests a more imprecise approach. It points out that Bradshaw does not impose a rigid rule for substantive reliability. Further, requiring K.A.’s mother to be present does not detract from reliability. The Youth Criminal Justice Act allows a young person to be counselled as an assurance of reliability rather than a detraction.
The minority suggested it was wrong to decide the appeal because the evidence in the voir dire was inconclusive. Instead, had the majority considered the appellant's evidence at trial, the curative provisions could apply.
The Supreme Court majority decision appears to accentuate the importance of determining the reliability of evidence, so the trier of fact can ascertain the truth. The Quebec Court of Appeal and the Supreme Court minority would apply a more mechanical approach to determining out-of-court statement admissibility. If the Crown retries the Charles case, Yves Celeb Charles returns to square one. By accepting the majority Supreme Court ruling, the law of evidence in Canada is advanced.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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