R. v. Goodstoney (G.E.), (2005) 377 A.R. 75 (QB)

• Judge: Rooke, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 28, 2005
• Citations: (2005), 377 A.R. 75 (QB);2005 ABQB 128

R. v. Goodstoney (G.E.) (2005), 377 A.R. 75 (QB)

MLB headnote and full text

Temp. Cite: [2005] A.R. TBEd. MR.011

Her Majesty The Queen v. Glenna Elissa Goodstoney (accused)

(040193500; 2005 ABQB 128)

Indexed As: R. v. Goodstoney (G.E.)

Alberta Court of Queen's Bench

Judicial District of Calgary

Rooke, J.

February 28, 2005.

Summary:

The accused was charged with first degree murder as a co-perpetrator or for counselling, aiding or abetting the person (Turning Robe) who actually stabbed the victim and had been previously found guilty of first degree murder. At the accused's trial, Turning Robe refused to be sworn as a witness and recanted three prior recorded statements implicating the accused in the death. At issue was whether the prior recorded statements were admissible.

The Alberta Court of Queen's Bench ruled that the third statement (KGB statement) was admissible subject to the condition that certain leading questions (and the answers) be excised and that the substance of the recantation also be admitted. The third statement was both necessary and reliable and its probative value outweighed its prejudicial effect. The first two statements, although necessary, failed to meet the threshold for reliability.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - Turning Robe was convicted of first degree murder - The accused was subsequently tried for the same offence as a co-perpetrator or for counselling, aiding or abetting Turning Robe - Turning Robe made three recorded statements to police, the last of which (KGB statement) implicated the accused in the death - Turning Robe refused to be sworn as a witness at the accused's trial - She recanted her earlier recorded statements - The Crown sought to admit all three statements - The accused opposed admission, particularly because of the unavailability of the witness to be cross-examined - The Alberta Court of Queen's Bench ruled that the third statement (imperfectly sworn KGB statement) was admissible subject to the condition that certain leading questions (and the answers) be excised and that the substance of the recantation also be admitted - The statement was highly relevant and probative - The statement was admissible for its truth because it met the threshold of necessity (where witness refused to be sworn) and reliability and the probative value outweighed the prejudicial effect - Although there was no opportunity for cross-examination, an oath was administered and the witness was warned of the consequences of not telling the truth - The first two statements were not admissible, having not met the threshold of reliability, where there was no oath, no warning to tell the truth and no opportunity to cross-examine - See paragraphs 25 to 89.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - Hearsay statements were admissible where the threshold of necessity and reliability were met and the probative value outweighed the prejudicial effect - The Alberta Court of Queen's Bench stated that in determining reliability, considerations included: "(a) the absence of a reason and/or motive to fabricate the statement (non-fabrication); (b) the timing of the statement in relation to the time of death (timing/remoteness); (c) the demeanour of the declarant at the time of the making of the statement (demeanour); (d) the spontaneity of the statement (spontaneity); (e) the relationship between the declarant and the witness (relationship); (f) the detail given in the statement (detail); (g) whether the declarant could be mistaken (mistake); and 'other', including an 'accurate record' - because it is clear from the cases that the list of factors is not closed and others may be added as appropriate to the particular circumstances" - Factors specifically not to be considered included "(a) reliability or credibility of the declarant; (b) general reputation of the declarant for truthfulness; (c) prior or subsequent statements, consistent or not; and (d) presence of absence of corroborating or conflicting evidence" - See paragraphs 17 to 18.

Cases Noticed:

R. v. Morehouse (I.F.) (2003), 353 A.R. 198 (Q.B.), refd to. [para. 7].

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1; 79 C.C.C.(3d) 257, refd to. [para. 7].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353; 59 C.C.C.(3d) 92, refd to. [para. 11].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321; 75 C.C.C.(3d) 257, refd to. [para. 11].

R. v. Hawkins (K.R.) and Morin (C.) (1996), 204 N.R. 241; 107 Nfld. & P.E.I.R. 179; 336 A.P.R. 179; 111 C.C.C.(3d) 129 (S.C.C.), refd to. [para. 12].

R. v. J.W.R., [1998] A.J. No. 1169 (C.A.), refd to. [para. 12].

R. v. Lavery (C.J.) et al., [1995] B.C.T.C. Uned. E18 (S.C.), refd to. [para. 14].

R. v. C.C.B. (1999), 185 Sask.R. 102 (Prov. Ct.), affd. (2000), 199 Sask.R. 108; 232 W.A.C. 108; 2000 SKCA 72, refd to. [para. 14].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161; 147 C.C.C.(3d) 449, refd to. [para. 18].

R. v. Conway (J.) et al. (1997), 106 O.A.C. 81; 121 C.C.C.(3d) 397 (C.A.), refd to. [para. 27].

R. v. Underwood (G.R.) (2002), 320 A.R. 151; 288 W.A.C. 151 (C.A.), refd to. [para. 35].

R. v. F.J.U., [1995] 3 S.C.R. 764; 186 N.R. 365; 85 O.A.C. 321; 101 C.C.C.(3d) 97, refd to. [para. 47].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321, refd to. [para. 52].

R. v. Tourangeau (R.J.) and Coté (E.J.) (1995), 137 Sask.R. 277; 107 W.A.C. 277 (C.A.), refd to. [para. 52].

Curry v. R. (1913), 22 C.C.C. 191 (S.C.C.), refd to. [para. 70].

R. v. Shajoo Ram (1914), 23 C.C.C. 334 (B.C.C.A.), refd to. [para. 70].

R. v. Glasgow (T.G.) (1994), 133 N.S.R.(2d) 234; 380 A.P.R. 234 (S.C.), refd to. [para. 83].

Counsel:

P.E. Yelle, Q.C., and S. Karpa, for the Crown;

B.Q.H. Der, Q.C., and L.M. Burgis, for the accused.

This voir dire was held on February 2-3 and 7, 2005, before Rooke, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, whose following oral judgment on the same date was filed in writing on February 28, 2005.