IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20131203

Docket: S080395

Registry:
Vancouver

Between:

Theodore Laktin

Plaintiff

And

City
of Vancouver, Vancouver Police Department, Constable Coulthard, Sergeant Clee,
Constable Dujmovic and Jane Doe

Defendants

Before:
The Honourable Mr. Justice Pearlman

Oral Ruling re Audio Taped Interview of the Plaintiff

[1]            
THE COURT:  Thank you.  I will begin with
my Ruling on the plaintiff’s application. 

[2]            
The plaintiff applies for an order that the
audio recording of the plaintiff’s interview of March 30, 2006, by Detectives
Weidman and Akin of the Vancouver Police Department be admitted into evidence
and marked as an exhibit.  Portions of the audio were put to the plaintiff in
cross‑examination on November 27 and 28 as part of defence counsel’s
cross‑examination of the plaintiff as to his credibility. 

[3]            
During the course of that cross‑examination,
counsel suggested to Mr. Laktin that he had tailored his evidence at trial
to conform with the testimony he had heard from his wife, Kim Laktin, and from
his father, Jim Laktin. 

[4]            
The plaintiff maintains that the audio statement
is consistent with Mr. Laktin’s testimony at trial and submits that the
audio statement given some two months after the incident and long before this
litigation was commenced is admissible as a prior consistent statement to rebut
the defence suggestion of recent fabrication.

[5]            
The plaintiff relies upon the recent Reasons for
Judgment of Mr. Justice Joyce in Gibbs v. Carpenter, 2013 BCSC 763. 
In that case, the plaintiff sued for damages she suffered in a motor vehicle
accident when she was struck by a vehicle driven by the defendant Carpenter and
owned by the defendant Kusch.  The issue at trial was whether the defendant
Kusch had consented to Mr. Carpenter’s use of the vehicle that evening.

[6]            
The Court found that an oral statement made by
Ms. Kusch to another witness before the motor vehicle accident in which
she said that she had refused to give the keys to her vehicle to
Mr. Carpenter was admissible, as a prior consistent statement to rebut
recent fabrication.  That statement was made before the accident and at a time
when Ms. Kusch had no reason to fabricate her evidence.  However, the Court
ruled the statement given by Ms. Kusch in writing at the suggestion of her
father, who was a police officer, on the day following the motor vehicle
accident, was not admissible on the basis that, by that time, Ms. Kusch
had reason to fabricate.

[7]            
Gibbs contains a
useful discussion of the applicable principles.  Mr. Justice Joyce at paras.
66 through 70 reviewed the law.  He began at para. 66 by citing para. 5 of
R. v. Stirling, 2008 SCC 10, where Justice Bastarache for the Court
said this:

It
is well established that prior consistent statements are generally
inadmissible.  This is because such statements are usually viewed as lacking
probative value and being self‑serving.  There are, however, several
exceptions to this general exclusionary rule, and one of these exceptions is
that prior consistent statements can be admitted where it has been suggested
that a witness has recently fabricated portions of his or her evidence. 
Admission on the basis of this exception does not require that an allegation of
recent fabrication be expressly made ‑ it is sufficient that the
circumstances of the case reveal that the "apparent position of the
opposing party is that there has been a prior contrivance".  It is also
not necessary that a fabrication be particularly "recent", as the
issue is not the recency of the fabrication but rather whether the witness made
up a false story at some point after the event that is the subject of his or
her testimony actually occurred.  Prior consistent statements have probative value
in this context where they can illustrate that the witness’s story was the same
even before a motivation to fabricate arose. 

[Internal
citations omitted.]

[8]            
At para. 67 of his Reasons for Judgment,
Mr. Justice Joyce went on to cite from para. 7 of Stirling.  At
para. 7, Mr. Justice Bastarache said this in part:

However,
a prior consistent statement that is admitted to rebut the suggestion of recent
fabrication continues to lack any probative value beyond showing that the
witness’s story did not change as a result of a new motive to fabricate. 
Importantly, it is impermissible to assume that because a witness has made the
same statement in the past, he or she is more likely to be telling the truth,
and any admitted prior consistent statements should not be assessed for the
truth of their contents.

[9]            
As Mr. Justice Joyce observed at para. 68,
the purpose of the prior consistent statement is to remove the potential motive
to fabricate, which the trier of fact may consider when assessing the witness’s
credibility. 

[10]        
At para. 69, Mr. Justice Joyce cited the
Ontario Court of Appeal judgment in R. v. Kailayapillai, 2013 ONCA 248
at para. 41 where the Court said this:

…
The value of the prior consistent statement does not rest exclusively in its
consistency with the evidence given by the witness at trial.  It is the
consistency combined with the timing of that prior statement. 

[11]        
Finally, at para. 70, Joyce J. emphasized
that the trial judge must not use the prior consistent statement for the truth
of its contents, citing para. 11 of Stirling. 

[12]        
The defence opposes the admission of the prior
statement of Mr. Laktin on two bases.  First, the defence submits that the
plaintiff, who bears the onus of proof, has failed to establish that
Mr. Laktin made the statement at a time when he had no reason to
fabricate.  Second, the defence submits that, in any event, the statement of
March 30, 2006, is not consistent in material aspects with Mr. Laktin’s
evidence at trial and therefore does not meet the requirement that it be a
prior consistent statement.

[13]        
With respect to timing, Mr. Laktin gave a
statement to the police some two months after the incident.  During that time,
he may well have had the opportunity to discuss the event with members of his
family.  It is notable that Mr. Laktin had his then counsel present which,
in my view, is an indication that he must have appreciated that the statement
he provided to the police could have civil or criminal legal implications. 

[14]        
I find that the plaintiff has not established
that the March 30, 2006 statement was given at a time when Mr. Laktin had
no reason to fabricate.  If I am wrong in that conclusion, I will go on to
consider the second ground on which the defence objects to the admissibility of
the statement.

[15]        
The defence says that the audio interview of
March 30, 2006 is largely consistent with Mr. Laktin’s discovery evidence
given on October 5, 2011, but is inconsistent with his trial testimony. 
In advancing that submission, counsel for the defendant referred to various
examples drawn from the transcript of Mr. Laktin’s examination for
discovery and the transcript of his statement of March 30 to the Vancouver
Police Department.  I will refer to only two of those examples. 

[16]        
First, at questions 91 and 92 of his examination
for discovery, Mr. Laktin was asked and answered these questions:

Q       Now,
I understand from reading documents disclosed in the civil suit that on January
20th, 2006, or in the several days leading up to January 20th, 2006, you had an
argument with your wife Kim about money and work.  Do you recall anything of
that type? 

A        I
recall we had an argument.  I do not exactly recall the details of the
argument. 

92:

Q       And
when do you recall having an argument with your wife? 

A        I
recall having an argument the day I left for Squamish, on the 21st. 

[17]        
In the interview of March 30, 2006,
Mr. Laktin was asked, and this appears at page nine, lines 17 to 19 of the
transcript:

Q       Yeah,
yeah.  So there was a little bit of an argument going on earlier or ‑‑
is that right?  Um, and that was before you had left to go to Squamish? 

A        Yeah. 

[18]        
At trial, Mr. Laktin gave evidence that he
had had an argument with his wife, Kim Laktin, on the preceding Wednesday, but
denied that he had argued with her on the Saturday morning, that is Saturday,
January the 21st, 2006. 

[19]        
Moving to the second example, in his examination
for discovery of October 5, 2011, Mr. Laktin was asked these questions at questions 324
and 325 and 326:

Q       Now,
what was the position of your body when you were stopped and looking at the
police?  That is after you pulled the knife from the butcher block and advanced
toward the door and then stopped.

A        Basically
square to them.

325:

Q       Okay. 
And you were also square to the door frame as well? 

A        Yes.

326:

Q       And
what do you recall happening after that? 

A        I
really don’t.  I just don’t recall anything after that. 

[20]        
Later on in his discovery at questions 343 to
344, Mr. Laktin repeated that he had no recollection beyond standing at
the door. 

[21]        
In the March 30, 2006 statement, Mr. Laktin
was asked this question and gave this answer:

Q       Yeah,
absolutely.  And you said you got to the door.  Answered the door.  That’s what
your words were.  Anything you remember, your actions at all or your wife’s
actions? 

A        No. 

[22]        
At trial, Mr. Laktin had a more extensive
recollection of the events at the time of the shooting.  He testified that he
realized what he was doing in approaching the officers with a knife was, as he
put it, totally stupid.  He remembered taking a step or two back and turning
toward his wife before he was shot. 

[23]        
In my view there are some significant
inconsistencies between the evidence that Mr. Laktin gave at trial and his
March 30 statement.  It will be for the jury, of course, to determine the
extent to which there are such inconsistencies and the weight that it attaches
to such inconsistencies and the explanations provided by Mr. Laktin during
the course of his testimony. 

[24]        
However, I conclude that the plaintiff has not shown
that Mr. Laktin’s statement to the police of March 30, 2006, is consistent
with his testimony at trial so as to constitute a prior consistent statement. 
Accordingly, the application of the plaintiff to adduce the March 30, 2006
audio statement to the police in evidence is dismissed.

“PEARLMAN J.”