R. v. Kokotailo

2019 BCSC 1868 R. v. Kokotailo

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Kokotailo, 2019 BCSC 1868 Date: 20191101 Docket: 27402 Registry: Vancouver Regina v. Jamie Kokotailo Before: The Honourable Mr. Justice Riley Ruling on Admissibility of Evidence at Faint Hope Hearing Counsel for the Crown: W.E. Dawson, Q.C. Counsel for the Accused: G. Orris, Q.C. Place and Date of Hearing: New Westminster, BC April 17-18, 2019 Place and Date of Ruling given to Parties with Reasons to Follow: New Westminster, B.C. April 23, 2019 Place and Date of Judgment: New Westminster, B.C. November 1, 2019 Table of Contents Introduction.. 3 Background.. 3 Legal Principles. 5 Analysis. 8 (1) Evidence Regarding Acts of Violence. 8 Relevance. 8 Trial Fairness, Probative Value, and Prejudicial Effect 9 Police Reports. 10 Evidence of Criminal Conduct Not Resulting in Convictions. 11 Applying the Principles to Determine Admissibility of the Evidence. 13 Incident #1. 13 Incident #2. 14 Incident #3. 14 Incidents #4A and #4B. 15 Incidents #5A and #5B. 15 Incidents #6A to #6E. 17 Incidents #7A to #7E. 19 Incident #8. 23 (2) The Audio Recording of the 911 Call 25 Introduction [1] The applicant Jamie Kokotailo was convicted of first degree murder in connection with the planned and deliberate killing of his former spouse, Lori Kokotailo, at their home in Mission, British Columbia on 1 December 2002. Mr. Kokotailo was sentenced to

life in prison, with no eligibility for parole until serving at least 25 years in prison. Mr. Kokotailo has now served more than 15 years of his sentence, and he has filed an application for a reduction in his parole ineligibility under s. 745.61 of the Criminal Code, R.S.C. 1985, c. C-46. [2] In a ruling given on 4 December 2018, I held that Mr. Kokotailo had met the initial threshold under s. 745.61(1) for a hearing, and that he should have the opportunity to present his application to a jury. Jury selection is scheduled for 25 April 2019, and the hearing itself is scheduled to commence on 29 April 2019, for ten days. [3] In this pre-hearing application, I was asked to rule on the manner in which the evidence is to be presented at the hearing as contemplated in Rule 7-11(a)(iii) to (v) of the British Columbia Supreme Court Criminal Rules, SOR/97-569. In particular, I was required to determine whether the Crown, in opposing the reduction in Mr. Kokotailo's parole ineligibility period, would be allowed to present evidence falling into two broad categories, namely (i) evidence of prior acts of violence committed or allegedly committed by Mr. Kokotailo, and (ii) the audio recording and transcript of the 911 call made during the murder. On 23 April 2019, I gave an oral decision announcing the result with reasons to follow. These are the reasons. Background [4] The following

circumstances are taken from an agreed statement of facts to be placed before the jury at the parole eligibility review hearing. [5] Mr. Kokotailo met Lori Sibley in 1998. In the spring or early summer of 1998, Mr. Kokotailo and Ms. Sibley began to live together. They were married in the spring of 1999, and Lori changed her last name to Kokotailo. By the time of the murder, they were living together in a house in Mission, along with two of Lori's daughters from a prior relationship, Brittany and Tamara Sibley. These two girls considered Mr. Kokotailo to be their step father. [6] In the months leading up to the murder, the relationship between Mr. Kokotailo and Lori had soured. Mr. Kokotailo was experiencing financial problems. He was aware that Lori had made statements suggesting an intent to leave him for another man. [7] On the day of the murder, Lori was returning from a weekend away. Evidence was presented at trial indicating that Mr. Kokotailo was planning an attempt at reconciliation. However, there was also evidence that Mr. Kokotailo had placed several knives, a baseball bat, and a role of duct tape at his disposal in the master bedroom in the event that Lori rebuffed his proposed reconciliation. [8] Lori got home just after 7:30 p.m. on 1 December 2002. Mr. Kokotailo greeted her at the door. Lori's daughters Brittany and Tamara and their friend Marissa were in the

living room watching a movie. Lori went upstairs to the master bedroom. Mr. Kokotailo followed her. Shortly thereafter, a struggle began. Brittany and Tamara entered the master bedroom to see that Mr. Kokotailo had taped Lori's mouth and had his hands around her throat. The girls tried to intervene but were overpowered by Mr. Kokotailo, who ended up stabbing Lori six to eight times with the hunting knife he had placed in the room earlier. [9] Upon entering the bedroom, Brittany picked up a phone and called 911, but Mr. Kokotailo grabbed the phone and hung it up. A short time later, Tamara's friend Marissa called 911 from a phone on the main level of the house and later handed the phone to Tamara. That 911 call, which lasted some five to six minutes, includes Tamara's reaction as she entered the bedroom to see Mr. Kokotailo stabbing her mother. [10] After stabbing Lori multiple times, Mr. Kokotailo fled the house. He drove to a coffee shop and phoned a friend, telling him, "I did it", "I killed her". Mr. Kokotailo then went to an ex-girlfriend's house. His father and brother in law later drove him to the police station where he turned himself in. [11] Mr. Kokotailo has been in custody since 2 December 2002. Following a trial before a judge and jury, he was convicted of first degree murder and sentenced to life in prison without eligibility for parole for 25 years. [12] On or

about 22 March 2018, Mr. Kokotailo filed the present application for a reduction of his parole ineligibility period under s. 745.61 of the Criminal Code. In support of the application, Mr. Kokotailo's counsel intends to present documentary and viva voce evidence. The documentary evidence includes Correctional Service of Canada ("CSC") reports outlining his background, his attitude toward the offence, and his conduct while serving his sentence. The viva voce evidence will include testimony Mr. Kokotailo and 12 other witnesses, including CSC officials, friends or associates who can offer evidence on Mr. Kokotailo's conduct during the period of time he has spent in custody, and expert opinion evidence from Dr. Monkhouse, a psychologist who has interviewed Mr. Kokotailo and reviewed his CSC file. [13] The Crown opposes Mr. Kokotailo's application to reduce his parole ineligibility period. In addition to the agreed statement of facts describing the circumstances of the offence, Crown counsel will present victim impact statements from Brittany and Tamara Sibley, CSC documents, Mr. Kokotailo's criminal record, and pre-sentence reports and probation records relating to Mr. Kokotailo's prior convictions. Counsel for Mr. Kokotailo is not opposed to the Crown's reliance upon any of these materials. However, Mr. Kokotailo's counsel says the Crown should not be permitted to present evidence

with respect to (i) prior acts of violence committed or allegedly committed by Mr. Kokotailo, and (ii) the audio recording of the 911 call. Legal Principles [14] The purpose of a parole ineligibility review application is to re-examine the initial decision requiring the offender to serve a minimum of 25 years of his or her life sentence before being eligible for parole "in light of new information or factors which could not have been known initially". This involves an examination of any "changes which have occurred in the applicant's situation and which might justify imposing a less harsh penalty": R. v. Swietlinski, [1994] 3 S.C.R. 481 at para. 12. [15] The parole ineligibility review hearing under what is now s. 745.63 of the Criminal Code takes place before a jury. The jury has "a broad discretionary power" in deciding whether to reduce the applicant's parole ineligibility period: R. v. Swietlinski at para. 13. [16] In R. v. Simmonds, 2018 BCCA 205 at para. 15, Dickson J.A. described the jury's task in the following terms: The jury's task is to consider the evidence and the statutory criteria, draw on its collective wisdom, and, if conscience dictates, temper strict legal justice with mercy by reducing parole ineligibility. In other words, jury members must ask themselves whether the offender deserves clemency or leniency by way of a reduction in the period he or she is

ineligible for parole. The jury is not required to apply specific legal principles to factual findings, standards of proof or other conventional tools of legal analysis in the decision-making process. [17] The statutory criteria referenced in Simmonds are found in s. 745.63(1) of the Criminal Code. That provision requires the jury to consider: (a) the character of the applicant; (b) the applicant's conduct while serving the sentence; (c) the nature of the offence for which the applicant was convicted; (d) any information provided by a victim at the time of the imposition of the sentence or at the time of the parole ineligibility review hearing; and (e) any other matters that the judge considers relevant in the circumstances. [18] The options available to the jury and the implications of the jury's decision, as set out in s. 745.63(3) to (7), can be summarized as follows: a) The jury is required to reach a unanimous verdict on the question of whether the offender's parole ineligibility period should be reduced: s. 745.63(3). b) If, on the one hand, the jury is unanimous in answering that question in the affirmative, then the jury may by a vote of a two thirds majority reduce the offender's parole ineligibility period by a specified number of years, or terminate the ineligibility period in its entirety: s. 745.63(5). c) If, on the other hand, the jury concludes that they cannot

unanimously agree to a reduction in the parole ineligibility period, then they may by a two-thirds majority vote set a time no earlier than five years after the date of their decision in which the offender may renew his or her application, or they may decide that the applicant should not be permitted to renew the application: s. 745.63(6)-(7). d) If the jury makes no recommendation as to when the offender may renew his or her application for a reduction in parole ineligibility, then the offender will be permitted to renew the application no earlier than five years after the date of the jury's decision refusing the application: s. 745.63(8). [19] The role of the assigned Judge presiding over this process is addressed in Rule 7 of the Supreme Court Criminal Rules. Under Rule 7(11)(a)(iii) to (v), the assigned Judge is required to determine the means of presenting evidence and the scope of examination of any witnesses. The assigned Judge may also take guidance from the case law interpreting and applying what is now s. 745.63(1) of the Criminal Code. The case law discusses the limits of relevance and admissibility at the hearing. See, for example, R. v. Chow, 2016 BCSC 781 [Chow No. 1] at para. 13, 76-78; R. v. Chow, 2016 BCSC 1218 [Chow No. 2] at para. 6-12. [20] It appears to be common ground between the parties in the case before me that the hearing of a parole ineligibility

review is not governed by the strict rules of admissibility that apply in a criminal trial. Rather, the rules of evidence are relaxed in more or less the same way that they are at a sentencing hearing or a dangerous offender proceeding. [21] Still, the assigned Judge has an important role to play in regulating the evidence that goes before the jury. The Judge must ensure that the evidence is relevant to one or more of the statutory criteria in s. 745.63(1). The judge may also be required to place limits on the evidence in order to ensure that the hearing is fair, as discussed in more detail below. Finally, the Judge always has the discretion and obligation to exclude evidence where its prejudicial effect exceeds its probative value, also discussed below. Analysis [22] In the present matter the Court is called upon to determine the admissibility of evidence falling into two broad categories. First, the Crown seeks to tender evidence of prior acts of violence committed or allegedly committed by Mr. Kokotailo. Second, there is the recording of the 911 call, in which Tamara Sibley provides a highly emotional, blood curdling contemporaneous reaction to the fatal attack on her mother. (1) Evidence Regarding Acts of Violence [23] The Crown seeks to present evidence in various forms about multiple acts of violence committed or allegedly committed by Mr. Kokotailo, all of which precede

the murder in respect of which he is now serving a life sentence. This evidence relates to eight separate events or series of events, including incidents that led to charges and resulted in convictions as reflected on Mr. Kokotailo's criminal record, incidents that led to charges but did not result in any convictions, and incidents that never led to any charges against Mr. Kokotailo. Relevance [24] As far as relevance is concerned, I am satisfied that all of the evidence the Crown proposes to present with respect to acts of violence committed or allegedly committed by Mr. Kokotailo is relevant with respect to at least two of the statutory criteria listed in s. 745.63(1). [25] First, evidence of prior criminal activity, including acts of violence, is directly relevant to Mr. Kokotailo's character as contemplated in s. 745.63(1)(a). The primary purpose of the parole ineligibility review hearing is to consider changes that have occurred since the imposition of sentence which might justify a reduction in the applicant's parole ineligibility period. As explained in R. v. Appleton, 2010 ONSC 3255 [Appleton] at para. 18, one cannot assess changes in the applicant's character at the time of the hearing without a proper appreciation of the offender's character at earlier points in time. Character is a broad concept which includes, but is by no means limited to, the applicant's criminal

antecedents: Chow No. 2 at para. 10-12; R. v. Jenkins, 2014 ONSC 3969 at para. 17; R. v. Jacquard, 2009 NSSC 333 at para. 10. [26] Second, evidence of prior acts of violence is contextually relevant to the circumstances of Mr. Kokotailo's offence as contemplated in s. 745.63(1)(c). More specifically, this evidence is relevant to the Crown's position that the offence of murder which is the subject matter of these proceedings was a specific manifestation of an ongoing pattern of violence toward intimate partners and other family members. Abuse of a spouse or a common law partner is a statutory aggravating factor on sentencing under s. 718.2(a)(ii), and the relevance of prior offences of violence directed toward a spouse in a parole eligibility review for a murder conviction arising out of an incident of domestic violence was confirmed in R. v. Morrison, 2012 ABQB 619 at para.

115. Trial Fairness, Probative Value, and Prejudicial Effect [27] I turn next to Mr. Kokotailo's argument that evidence of prior acts of violence should be ruled inadmissible based on trial fairness concerns, or on the basis that the probative value of this evidence is outweighed by its prejudicial effect. Mr. Kokotailo's counsel does not suggest that all of the evidence about prior acts of violence should be ruled inadmissible. He concedes the admissibility of Mr. Kokotailo's criminal record, as well as any viva voce evidence describing the underlying circumstances of the offences on that criminal record. He further concedes that official records pertaining to Mr. Kokotailo's prior convictions, including pre-sentence reports, probation orders, and probation office records, are properly admitted in a parole ineligibility review hearing. [28] Counsel for Mr. Kokotailo focuses his objection on evidence falling into two broad categories. First, counsel objects to the admission of Reports to Crown Counsel and other police reports pertaining to the offences on Mr. Kokotailo's criminal record. Second, counsel objects to the admission of all evidence of alleged criminal conduct that did not result in convictions as reflected on the criminal record. I will address each of these categories of evidence separately, as they raise somewhat different concerns. Police Reports [29] With regard

to Reports to Crown Counsel and other police reports, I take guidance from R. v. Williams, 2018 ONCA 437 [Williams], which dealt with the admissibility of "police synopses" in the context of a dangerous offender proceeding. A dangerous offender hearing is similar to a parole ineligibility hearing inasmuch as it is a post-conviction proceeding that is not concerned with guilt or innocence. In this context, the rules of evidence are somewhat relaxed and hearsay evidence may be admitted so long as it is "credible and trustworthy": Williams at para. 49, applying R. v. Gardiner, [1982] 2 S.C.R. 368 at p.

414. Thus, the Court in Williams held that "police synopses" were generally admissible on a dangerous offender application, although they should be treated with caution and should not be taken by the trier of fact as dispositive proof of their contents: Williams at para. 1, 46-51, 52, 55. [30] Applying this reasoning to the case at bar, I conclude that the Reports to Crown Counsel and other police reports relating to the offences on Mr. Kokotailo's criminal record are not wholly inadmissible under the hearsay rule, the strictures of which are somewhat relaxed in the context of a parole ineligibility review hearing. However, it is necessary for the Court to review the particular reports or extracts which the Crown seeks to tender, to determine whether those particular reports or extracts are sufficiently "credible and trustworthy" and have sufficient indicia of reliability to permit their admission before the jury. I will undertake that exercise later in my reasons. Evidence of Criminal Conduct Not Resulting in Convictions [31] Counsel for Mr. Kokotailo says the court should refuse to admit evidence pertaining to alleged criminal conduct not resulting in any criminal conviction against Mr. Kokotailo. Allowing the Crown to present evidence of what is effectively unproven historical allegations of criminal activity would, it is submitted, undermine the fairness of the proceedings.

Counsel for Mr. Kokotailo further submits that the prejudicial effect of the evidence of prior unproven allegations of violence greatly exceeds its probative value. [32] In taking this position, counsel reminds the court of what will be in issue and what will not be in issue in the hearing. More specifically, counsel stresses that Mr. Kokotailo does not seek to characterize the murder of his former spouse as an isolated act. He does not deny a history of violence as reflected in his criminal record. His history of violence toward intimate partners is also referenced in the Parole Eligibility Report and other CSC documents which counsel concedes should properly go before the jury, without the need for any editing. Counsel says the jury will be fully aware of Mr. Kokotailo's prior history of spousal violence, such that this is not really a material fact in issue. [33] Against this backdrop, Mr. Kokotailo's counsel objects to the Crown's proposal to call witnesses who will recount specific allegations of violence which have never resulted in convictions and which Mr. Kokotailo has never admitted. Counsel says that to allow the Crown to present such evidence would be unfair, and would distract the jury by inviting them to undertake a collateral inquiry into prior unproven allegations. Counsel for Mr. Kokotailo says this would be particularly unfair in the context of a parole ineligibility review hearing, in which it is generally considered unnecessary and inappropriate to instruct the jury on the concept of proof beyond a reasonable doubt, as discussed in Swietlinski at para. 14-15. [34] In support of his position, Mr. Kokotailo's counsel cites Chow No.

1. That case involved a parole ineligibility review application arising from a conviction for first degree murder. The applicant had previously been charged on a 21 count indictment containing allegations of unlawful firearms, possession in relation to a drive-by shooting, conspiracy to commit extortion and mischief, fraud, and forgery. The applicant was ultimately found guilty of fraud and mischief, and the Crown entered a stay of proceedings on the balance of the charges. At the parole ineligibility review hearing, the Crown sought to call evidence from an investigating officer in an effort to show that the applicant was involved in a broad range of criminal activity, beyond the particular offences noted on his criminal record. The court ruled this evidence inadmissible, reasoning at para. 77 that, "It is not appropriate, and has an element of unfairness, to introduce new facts and new allegations into matters long since disposed of", considering as well that the Crown had "all the evidence it needs of [the applicant's] involvement in criminal gang activity" from other admissible sources. [35] The court in Chow No. 1 did not explain the legal basis for its conclusion that it was unfair for the Crown to "introduce new facts and new allegations into matters long since disposed of" in a parole ineligibility hearing. Certainly, since the character of the applicant is a specific

statutory factor listed in s. 745.63(1), the rules barring admission of character evidence in a criminal trial have no application whatsoever in the context of a parole ineligibility review hearing. Nonetheless, I consider Chow No.1 to be authority for the proposition that the presiding judge has the responsibility to draw limits on the scope of admissibility of evidence of unproven criminal conduct at a parole ineligibility hearing, in the interests of ensuring that the hearing is fair and does not become an inquiry into collateral matters. Above and beyond this, the presiding judge clearly has the discretion to exclude evidence where its prejudicial effect outweighs its probative value. [36] The presiding judge's discretion to place limits on the scope of the evidence to be called at a parole ineligibility hearing must be exercised judicially. In this regard, I find the principles articulated in R. v. Edwards (2001), 155 C.C.C. (3d) 473 (Ont. C.A.) to be helpful. The issue in Edwards was admissibility and use of evidence pertaining to other criminal acts, including previously unproven offences, at a sentencing hearing. In resolving that issue, Rosenberg J.A. reasoned at para. 4 that "[e]vidence of uncharged and untried offences is admissible for the limited purpose of showing the background and character of the offender", but also that the sentencing judge has the discretion

to refuse to admit such evidence. [37] At para. 64 of Edwards, Rosenberg J.A. set out a list of considerations that a sentencing judge might take into account in deciding how to exercise the discretion to exclude evidence of "untried offences". I find these considerations useful in determining the admissibility of evidence of "untried offences" at a parole ineligibility review hearing. Adapted for that context, I would summarize the considerations listed in Edwards as follows: (i) the nexus between the evidence and the predicate offence, (ii) the similarity between the evidence and the predicate offence, (iii) the difficulty the applicant may encounter in properly defending against allegations of untried offences in the context of a parole ineligibility review hearing, (iv) the danger that the hearing will be unduly prolonged, (v) the danger that the focus of the hearing will be diverted from its true purpose, i.e., the determination of whether the applicant's parole ineligibility period should be reduced in light of developments that have occurred since the original sentence was imposed, (vi) whether the applicant has adduced evidence of good character, and (vii) the cogency of the evidence. [38] As noted above, the Crown seeks to tender evidence with respect to eight prior events or series of events. I will address each of them separately in turn, taking into account the list

of considerations discussed in the preceding paragraph. Without commenting separately on each consideration in relation to each and every incident, I stress that I have taken all of them into account in determining the admissibility of the evidence. Applying the Principles to Determine Admissibility of the Evidence Incident #1 [39] Incident #1 pertains to Mr. Kokotailo's assault of R.G. on 8 May 1981. Mr. Kokotailo's criminal record contains entries for assault and mischief to property in connection with this incident. The Crown says the entries on the criminal record do not adequately describe the offences. The Crown seeks to tender the Report to Crown Counsel and the pre-sentence report in connection with this incident. [40] I accept Crown counsel's submission that since the criminal record contains only the bare facts of the convictions, the Crown should be permitted to tender additional evidence describing the circumstances of the offences. However, I do not agree that the entire Report to Crown Counsel should go before the jury, since some portions of it are not based on first hand accounts of the event that led to the convictions. My conclusion is that the Crown will be permitted to tender (i) those portions of the Report to Crown Counsel in which the victim's account of the offences is set out, and (ii) the pre-sentence report. Incident #2 [41] Incident #2 pertains to

Mr. Kokotailo's assault of D.E. on 6 February 1992. Mr. Kokotailo's criminal record contains an entry for assault causing bodily harm in connection with this incident. Once again, the Crown says the criminal record does not adequately describe the offence. The Crown seeks to tender the Report to Crown Counsel and the pre-sentence report in connection with this incident. [42] My conclusions on Incident #2 mirror my conclusions on Incident #1. The Crown will be permitted to tender (i) those portions of the Report to Crown Counsel in which the victim's account of the offence is set out, and (ii) the pre-sentence report. Incident #3 [43] Incident #3 pertains to an alleged assault by Mr. Kokotailo against his brother David. The incident allegedly occurred when Mr. Kokotailo and his brother were "little" or "growing up". It appears that the incident was not reported to the police at the time, as a result of which there are no contemporaneous statements or records pertaining to it. Crown counsel says she is at least contemplating calling David Kokotailo to prove this allegation. In a statement given on 19 February 2019, David said he and Jamie [Mr. Kokotailo] were engaged in "fisticuffs", and events got out of hand when Jamie, who was losing, hit David in the head with a fire poker. [44] I would not admit evidence of this incident. The nexus between this incident and the predicate

offence of murder is extremely weak. The incident bears little similarity to the predicate offence, either in terms of the context or the particulars of the alleged violence. The incident took place many decades ago. It does not appear to have been reported to the authorities at the time, and there are no contemporaneous records, making it difficult for Mr. Kokotailo to defend against this allegation. The jury will already be aware of Mr. Kokotailo's history of violence, as reflected in the entries on his criminal record. I am told that Mr. Kokotailo will not deny his history of violence, including family violence. In my view, placing evidence of this allegation before the jury would only distract them from their task. Incidents #4A and #4B [45] Incidents #4A and #4B pertain to alleged assaults by Mr. Kokotailo against his sister Andrea. These incidents allegedly occurred "during high school years". They were not reported to the police at the time as a result of which there are no contemporaneous statements or records. Crown counsel seeks to call Andrea Kokotailo to prove one of the allegations, and Andrea and David Kototailo to prove the other. Andrea was interviewed by the police on 12 February 2019. She would not consent to a recorded interview, but told the police about two separate incidents in which Mr. Kokotailo was fighting with his then-girlfriend Leanne when Andrea

intervened and was assaulted by Mr. Kokotailo. Andrea described her injuries in both events, which were not insignificant. David Kokotailo also said in his statement that he was present for one of these incidents. [46] My conclusions on these two incidents mirror my conclusions on Incident #3. The Crown will not be permitted to tender any evidence with respect to Incidents #4A and #4B. Incidents #5A and #5B [47] Incidents #5A and #5B pertain to Mr. Kokotailo's former partner, K.M. Mr. Kokotailo and Ms. M met in 1990 and were in a common law relationship for some time. They had a child together. [48] Incident #5A relates to an alleged assault of Ms. M on 16 April 1992. This incident was apparently not reported to the police at the time and no charges were ever laid in connection with it. There are no contemporaneous statements or records pertaining to this incident. Ms. M told the police about the incident when interviewed on 18 January 2003, as reflected in notes taken by an investigating officer. In a formal statement given on 11 February 2019, Ms. M said that during a domestic disturbance, Mr. Kokotailo threw things at her, shoved her, and hit her in the head with an end table. The Crown seeks to call Ms. M to testify about this incident. [49] Incident #5B relates to an assault of Ms. M on 23 September 1992. Mr. Kokotailo's criminal record contains an entry for assault in

connection with this incident. The Crown says the criminal record does not adequately describe the circumstances of the offence and thus seeks to call Ms. M to give evidence about it. There are contemporaneous records about this event, including a Report to Crown Counsel which includes a handwritten witness statement of Ms. M. Mr. Kokotailo and Ms. M had split up, and Ms. M was living in the interior region of British Columbia with their daughter, who was a toddler at the time. Ms. M and Mr. Kokotailo planned to meet at a restaurant in Vancouver, so that Mr. Kokotailo could visit with his daughter. As Ms. M approached the restaurant with the baby in a stroller, Ms. Kokotailo came out of the building, picked up the baby, refused to return it to Ms. M, and started to walk back to his car. Ms. M went to a pay phone to call 911. Mr. Kokotailo drove up to the phone booth, grabbed Ms. M by the throat and the hair, and tried to force her into his car. Ms. M resisted. Mr. Kokotailo sped away with the baby lying on the passenger seat of the car, leaving Ms. M on the ground in the parking lot. Some three hours later - following a series of phone calls between Mr. Kokotailo, his parents, the police, and Ms. M - Mr. Kokotailo returned the baby. [50] My conclusion is that the Crown will be permitted to lead evidence from Ms. M with respect to Incident #5B, but not with respect to Incident

#5A. [51] Incident #5B resulted in an entry for assault on Mr. Kokotailo's criminal record, meaning that Mr. Kokotailo either pled guilty or was found guilty following a trial. In either case, the fact of the assault is basically beyond dispute since the criminal record is admitted to be accurate. I agree with Crown counsel that the Crown should be permitted to lead evidence from Ms. M to describe the circumstances of the assault, beyond the bare facts set out in Mr. Kokotailo's criminal record. Although from a temporal perspective Incident #5B is not closely linked to Mr. Kokotailo's predicate crime, it is contextually similar in that it involved an act of assault committed upon a former intimate partner. Since the incident resulted in a conviction, the concern about Mr. Kokotailo's ability to defend himself against the allegation is significantly attenuated. Moreover, Mr. Kokotailo has access to the police report which includes statements from the victim. [52] By contrast, Incident #5A did not result in any charges. In terms of its temporal and contextual similarity to the predicate offence, Incident #5A is comparable to Incident #5B. However, Incident #5A is different in that it did not result in any charge or conviction. And since the matter was not reported to the police at the time, there are no contemporaneous records or statements, making it more difficult for Mr.

Kokotailo to answer the allegation. It is significant in my view that the jury will already be aware of Mr. Kokotailo's history of violence, and in particular his history of violence toward Ms. M, a former intimate partner, as evidenced by the entry on Mr. Kokotailo's criminal record and Ms. M's viva voce testimony about Incident #5B. Moreover, I am told that Mr. Kokotailo will not suggest in his testimony that Incident #5B was an isolated act of violence or was the only instance when he was violent toward Ms. M. In all of these circumstances, allowing testimony from Ms. M about a decades-old, previously unproven specific allegation of violence could open up a collateral inquiry into the truthfulness of that particular allegation, detracting the jury from its focus. Incidents #6A to #6E [53] Incidents #6A to #6E pertain to alleged assaults, threats, and damage to the property of L.R., another former partner of Mr. Kokotailo. Ms. R and Mr. Kokotailo were in a relationship from 1993 to 1994, during which they resided together and had a child. There is no indication as to which of the events were reported to the police. Crown counsel advises that since no charges were laid, any police records pertaining to these allegations have since been purged. As a result, there are no contemporaneous statements or records in connection with these allegations. [54] The Crown seeks to prove

these allegations through the testimony of Ms. R, who gave statements about these matters on 15 February 2019 and 27 March 2019. In those statements, Ms. R indicates that Mr. Kokotailo committed or threatened violence against her on multiple occasions, but that five specific incidents stick out in her mind. The Crown's summary of evidence does not provide any specific dates of the incidents, although it can be inferred that they all occurred between 1993 and 1994, during the relationship. [55] Incident #6A involves an allegation that Mr. Kokotailo threw a rocking chair at Ms. R, and then came at her with a butcher knife. Ms. R was five months pregnant at the time. [56] Incident #6B involves an allegation that Mr. Kokotailo grabbed Ms. R by the neck, lifted her up off the ground, and choked her. Ms. R says this incident was witnessed by her brother, but the Crown has not obtained a statement from him. [57] Incident #6C involves an allegation that Mr. Kokotailo damaged Ms. R's property, by slashing her clothing and breaking her dishes. Ms. R says this occurred several times, on instances when she moved out of their apartment and later returned to collect her belongings. [58] Incident #6D relates to an allegation that Mr. Kokotailo threatened to kill Ms. R. The Crown's outline of evidence does not provide any specific date, time frame, or context for this allegation. [59] Incident

#6E involves an allegation that Mr. Kokotailo turned a water hose on Ms. R and her two month old son. Ms. R says this incident arose in the context of an argument surrounding Mr. Kokotailo's refusal to go to an anger management course at Ms. R's church. [60] I find the proposed evidence of Ms. R with respect to Incidents #6A through #6D inadmissible. I accept that there is a strong contextual connection between the allegations reflected in these incidents and the predicate crime. All of these incidents involve alleged abuse of a former intimate partner; the allegations include use of a knife, choking, and destruction of property, corresponding with features of the predicate crime. However, all of these allegations are unproven, and there are no contemporaneous statements or other records, making it difficult for Mr. Kokotailo to defend against them. As I have noted several times above, the jury will hear about Mr. Kokotailo's history of violence as reflected on his criminal record. The jury will also hear about Mr. Kokotailo's history of violence toward intimate partners, as reflected in the testimony of Ms. M (described above), and Ms. T (described below), and the affidavit describing prior offences committed against Lori Sibley (described below). I have also noted several times above that Mr. Kokotailo does not dispute his history of domestic violence. Taking all of this into

consideration, allowing Ms. R to testify about previously unproven allegations of violence against her would pose an unjustifiable risk that the jury could be drawn into a collateral inquiry into the truth of those specific allegations, thus distracting the jury from its task. Incidents #7A to #7E [61] Incidents #7A to #7E all relate to Mr. Kokotailo's former partner, H.T. Mr. Kokotailo was in a relationship with Ms. T from 1996 to 1997. In each of the incidents, #7A through #7E, Ms. T made a report to the police and charges were laid. Thus, there are some contemporaneous records pertaining to these matters. [62] Incident #7A involves an allegation that Mr. Kokotailo assaulted Ms. T on 29 June 1996. This incident resulted in a charge that was later stayed. The only contemporaneous record in existence is a single page computer-generated occurrence report containing a three line summary of the incident. Ms. T reported that following an argument at their apartment, Mr. Kokotailo became enraged and "beat her up" or "pushed her". Ms. T later testified about this event at a bail hearing in relation to a subsequent charge on 27 June 1997. She also described this incident in a recent statement given to the police on 6 March 2019. [63] Incident #7B relates to an allegation that on 27 September 1996, Mr. Kokotailo damaged the apartment door of one of Ms. T's friends, and caused Ms. T to

fear for her safety. This incident led to charges that were later stayed. There are no contemporaneous police records or statements pertaining to this incident. Ms. T described it in her testimony at Mr. Kokotailo's bail hearing on 27 June 1997, and in her more recent statement to the police on 6 March 2019. I have not been provided with a summary of this allegation. [64] Incident #7C relates to an allegation that Mr. Kokotailo assaulted Ms. T on 17 November 1996. The incident was reported to the police and documented in an occurrence report. Ms. T later described the incident in testimony at a bail hearing on 27 June 1998, and in her recent statement to the police on 6 March 2019. The substance of the allegation is that after a night of drinking and socializing, Mr. Kokotailo and Ms. T got into an argument when Ms. T wanted to go home. Mr. Kokotailo is alleged to have pushed Ms. T, grabbed her by the neck, thrown her on the ground, covered her mouth, and punched her in the eye. An investigating officer took photographs of Ms. T's injuries which included swelling and bruising around the eye. This incident resulted in a charge, which was later added to another set of charges that went to trial. All of the charges were stayed on 20 July 1998, when Ms. T did not attend court to testify. [65] Incident #7D involves a series of allegations between 20 January 1997 and 31 January 1997.

These events were reported to the police and documented in a Report to Crown Counsel that included statements from Ms. T and several others who witnessed at least some portion of the events. The substance of the allegations is as follows. On 20 January 1997, Mr. Kokotailo allegedly grabbed Ms. T by the throat, held a knife to her throat, and threatened to kill her. On 24 January 1997, Mr. Kokotailo and Ms. T got into an argument at Ms. T's apartment, in the course of which Mr. Kokotailo is alleged to have grabbed Ms. T by the neck and choked her while repeatedly uttering the words, "die bitch". Finally, on 31 January 1997, after an argument with Ms. T at her workplace, Mr. Kokotailo is alleged to have approached her landlord and demanded access to her apartment, entered, stole some of Ms. T's property, and damaged other things by slashing them or stabbing them with a knife. The damage to Ms. T's property was corroborated by police investigation and photographs. Mr. Kokotailo was later interviewed by a police officer and admitted going to the apartment to remove property which he claimed belonged to him, but apparently denied causing the damage. All of these allegations led to charges which went to trial, but were stayed on 20 July 1998 when Ms. T did not attend court. [66] Incident #7E involves an assault on Ms. T and other offences committed on 31 May 1997. Mr. Kokotailo's

criminal record contains entries for assault causing bodily harm, break and enter, threatening, and breach of a recognizance in connection with this incident. The Crown says the criminal record does not adequately describe the circumstances of the incident leading to these convictions and thus seeks to call Ms. T and one of the investigating officers to give evidence about it. There are contemporaneous records about this event, including a Report to Crown Counsel which includes a handwritten witness statement of Ms. T, and investigative reports and notes from Cst. Jones, now an RCMP Superintendent. The event can be summarized as follows. After a night of drinking and socializing with Mr. Kokotailo and some co-workers, Ms. T went home to her apartment. After changing clothes, she went out again, but was confronted by Mr. Kokotailo in the hallway. Mr. Kokotailo grabbed her by the throat, punched her and kicked her, and then forced his way into the apartment. When Mr. Kokotailo went to the fridge to get a beer, Ms. T leapt from the apartment to a nearby balcony. Cst. Jones and an auxiliary officer attended and found Ms. T cowering on the neighbour's balcony. Ms. T was noted to have significant injuries to her face, neck, and chest. Several hours later, the police accompanied Ms. T home from the hospital and entered her apartment to find Mr. Kokotailo inside. Pillows, clothing,

photographs and bedding had been slashed with a knife. The police arrested Mr. Kokotailo, who then threatened the officers, stating that he would find out their addresses and come after them. Mr. Kokotailo pled guilty to assault causing bodily harm, uttering threats, break and enter, and breach of a recognizance in connection with this incident and was sentenced to four months in jail and three years of probation. [67] My conclusion is that the Crown will be permitted to lead viva voce evidence from Ms. T and Superintendent Jones with respect to Incident #7E, but the Crown will not be permitted to call evidence with respect to Incidents #7A to #7D. [68] Incident #7E involved matters that were reported to the police, documented in police reports, resulted in charges, and led to convictions for assault causing bodily harm and other offences as reflected on Mr. Kokotailo's criminal record. Once again, I accept the submission that the Crown should be permitted to call evidence with respect to details, beyond the bare fact of the convictions set out in the criminal record. Since the incident led to convictions as reflected on Mr. Kokotailo's record which is admitted, there is no dispute that the offences were actually committed. The evidence of Ms. T and Superintendent Jones describing the circumstances of Mr. Kokotailo's assault against Ms. T and the subsequent threatening of then

Cst. Jones is, in my view, important evidence to show both the seriousness of the assault, and the surrounding circumstances of its commission, including the fact that it involved destruction of Ms. T's property with a knife, which is a feature that bears some similarity to the circumstances of the predicate offence. [69] Mr. Kokotailo's counsel submits that the testimony of Ms. T as to the surrounding circumstances may be subject to challenge on the basis that Ms. T had been drinking, and that her relationship with Mr. Kokotailo was admitted by Ms. T herself to have been volatile and dysfunctional. Mr. Kokotailo is free to explore these themes in cross-examination of Ms. T, to the extent that he sees any value in doing so. However, I would not deprive the Crown of the opportunity to call evidence explaining the surrounding circumstances, based solely on the fact that Mr. Kokotailo may challenge the reliability of the Crown's evidence. This evidence has some potential to draw the jury into a collateral inquiry, but that consideration does not carry the day in view of the relevance of the evidence, its contextual connection to the predicate offence, and the fact that the core allegation of assault resulted in a criminal conviction against Mr. Kokotailo. [70] With regard to incidents #7A through #7D, these are all prior incidents of alleged violence toward Ms. T. I find the

proposed testimony of Ms. T in relation to these incidents to be inadmissible for the same reasons that I ruled the proposed evidence of Ms. R in relation to Incidents #6A through #6E inadmissible. The jury will have ample evidence of Mr. Kokotailo's history of violence toward former partners. Specifically in relation to Ms. T, counsel emphasizes that there will be no suggestion to the jury that the assault of Ms. T as reflected on Mr. Kokotailo's criminal record was an isolated incident. Mr. Kokotailo basically concedes that he was violent toward Ms. T in the course of their relationship. In view of all this, I am concerned that allowing Ms. T to give detailed testimony about specific prior incidents of violence that did not result in any convictions against Mr. Kokotailo would pose an unjustifiable risk of drawing the jury into collateral inquiries, distracting them from the ultimate task of deciding whether Mr. Kokotailo's parole ineligibility period should be reduced in light of changes that have occurred since the time of his original sentencing. Incident #8 [71] Incident #8 relates to events that occurred on 31 May 1997, at the family home, involving Mr. Kokotailo, his then common law partner Lori Sibley, and her two daughters Heather and Brittany. Following a confrontation between Mr. Kokotailo and Heather, Lori intervened. Mr. Kokotailo pushed Lori onto a bed and

started choking her. Lori broke free and ran down stairs to the main level of the house. Mr. Kokotailo followed. He uttered a threat to Brittany, claiming that he would kill Brittany, Heather, and Lori. Mr. Kokotailo then picked Lori up by the throat and choked her until she lost consciousness. The police arrived and entered the house to find Mr. Kokotailo standing over Lori. Mr. Kokotailo was arrested. A Report to Crown Counsel was prepared and Mr. Kokotailo was charged with assault causing bodily harm and uttering threats. Mr. Kokotailo pled guilt to simple assault in connection with this incident and was sentenced to one day in jail. The Crown stayed the threatening charge. [72] The Crown says the criminal record does not fully describe the circumstances. The Crown seeks to tender the affidavit of Cpl. Joyce, sworn in 2009 for the purposes of a bail hearing, which attaches witness statements from Lori Sibley, Brittany Sibley, and Heather Sibley, along with an extract from the Report to Crown Counsel, and a copy of the Information charging Mr. Kokotailo with assault causing bodily harm and uttering threats. [73] My conclusion is that the affidavit of Cpl. Joyce should be admitted. I accept the submission that since Mr. Kokotailo's criminal record contains only the bare facts of the assault conviction, the Crown should be permitted to tender additional evidence describing the

surrounding circumstances. The witness statements of Lori, Brittany, and Heather are first hand accounts of the events. The single page extract from the Report to Crown Counsel ties all three statements together to provide a coherent narrative of the entire incident. Because the incident resulted in an assault conviction reflected on Mr. Kokotailo's criminal record which is admitted to be accurate, his commission of the assault on Lori is beyond dispute. [74] Mr. Kokotailo submits that the evidence the Crown proposes to tender in relation to this incident includes allegations of assault causing bodily harm and threatening, which Mr. Kokotailo was never proven to have committed. Counsel says it is unfair to allow the Crown to present affidavit evidence with respect to these previously unproven allegations. I do not accept that submission. The case law discussed above indicates that evidence of unproven allegations is relevant to and may be admitted as evidence of character, which is one of the statutory criteria the jury is required to consider on a parole ineligibility review hearing. [75] It would be open to Mr. Kokotailo to point out to the jury that he was only convicted of simple assault and that he has no conviction for threatening arising out of this event. He would be also be permitted to make submissions to the jury as to the reliability or ultimate weight to be

attached to the witness statements and the extract from the Report to Crown Counsel. Finally, it would also be open to Mr. Kokotailo to give his own account of these particular events, to the extent that he sees any value in doing so. There is some risk that this could lead the jury into a collateral inquiry as to the particulars of the 31 May 1997 incident, but in my view that risk must be balanced against the importance of the evidence. [76] The three witness statements and the single page extract from the Report to Crown Counsel are, in my view, important evidence relevant to both the seriousness of the assault on Lori, and the surrounding circumstances of its commission. There is a significant contextual link to the predicate offence in that the assault on 31 May 1997 pertained to Mr. Kokotailo's choking of Lori Sibley, the victim in the murder. Moreover, the assault and the evidence of threats on 31 May 1997 all involve domestic violence directed toward Mr. Kokotailo's spouse and her family members. Mr. Kokotailo threatened to kill Lori. As it turned out, he later followed through on the threat. All of this is highly cogent evidence of Mr. Kokotailo's character in the years leading up to the predicate offence, and the context in which the predicate offence was committed, namely violence directed toward an intimate partner. (2) The Audio Recording of the 911 Call [77] The

circumstances of the murder are set out in an agreed statement of facts that will be placed before the jury. The agreed statement of facts makes reference to two 911 calls from the murder scene. The first call was made by Brittany Sibley, from the master bedroom, while Mr. Kokotailo was choking Lori. That call ended when Mr. Kokotailo grabbed the phone and hung it up, before continuing his assault on Lori. The second call was made by Tamara's friend, Marissa, using a cordless phone on the main level of the house. Near the end of this call, Tamara grabbed the phone and went into the master bedroom, as Mr. Kokotailo was stabbing Lori to death. The Crown seeks to tender an audio recording and a typed transcript of this 911 call as evidence at the parole ineligibility review hearing. [78] In the course of the hearing, I was informed that the 911 recording was ruled inadmissible at Mr. Kokotailo's murder trial. I was not provided with the trial judge's ruling, although I accept that it would be of limited assistance because the issues in the murder trial were different, and certain rules of admissibility, including the rule against hearsay, operate differently at trial than they do in a parole ineligibility hearing. [79] Counsel for Mr. Kokotailo objects to the admission of the audio recording on the basis that its prejudicial effect exceeds its probative value. The nature of the

concern was aptly described by Mr. Justice Macaulay in R. v. Bartkowski, 2004 BCSC 442 at para. 11, quoting from The Law of Evidence in Canada: Sopinka, Lederman and Bryant, 2nd edition, at 18.81: It is an accepted rule that photographs and videotapes, even if relevant to the issue being tried are subject to certain limitations, one of which is that admission will be refused where the inflammatory and prejudicial effect of the photograph or videotape exceeds its potential evidentiary or probative value. In criminal jury trials, the trial judge must be cautious to protect the accused's right to a fair trial if the photographs may inflame the jury, especially if they are of low probative value. [80] In R. v. Kinkhead, [1999] O.J. No. 1498 (S.C.) [Kinkhead], the court outlined a three step analysis for determining the admissibility of potentially inflammatory "crime scene" evidence in a criminal jury trial. I would describe those steps as follows. First, the trial judge must consider "the probative value of the evidence assessing its tendency to prove a fact in issue", including "the credibility of witnesses". Second, the judge must consider "the prejudicial effect of the evidence" due to either its "tendency to prove matters not in issue", or due to "the risk that the jury may use the evidence improperly to prove a fact in issue". Third, the judge must "balance the probative

value against the prejudicial effect", considering "the importance of the issues for which the evidence is legitimately offered against the risk that the jury will use it for other improper purposes, taking into account the effectiveness of any limiting instructions". This framework was cited with approval in Bartkowski at para. 11 and R. v. Sipes, 2011 BCSC 920 at para. 21. [81] Although Kinkhead dealt with admissibility of potentially inflammatory "crime scene" evidence in a trial setting, in my view the framework articulated in that case is general enough to be used in determining admissibility of the 911 recording which the Crown seeks to place before the jury at Mr. Kokotailo's parole ineligibility review hearing. One of the important themes emerging from Kinkhead is that both the probative value and the prejudicial effect of the evidence must be considered by reference to what is in issue and what is not in issue in the proceedings. [82] The Crown says the audio recording and the transcript of the 911 call are relevant to the circumstances of the offence, one of the statutory criteria the jury is required to consider in s. 745.63(1). Crown counsel cites Appleton, in which the presiding judge rejected a submission that crime scene photographs were "too inflammatory to go to the jury" in a parole ineligibility review hearing. The judge concluded at para. 35 that "[t]he jury

is entitled to know the nature of the offence and the photographs are important and relevant evidence in that regard". Appleton is helpful but by no means dispositive. It is important to note that in issue in that case were four crime scene photographs, only one of which was of the victim's body. The presiding judge characterized the photographs as "extraordinarily conservative", considering that the victim had been bludgeoned to death by 65 blows to the head and also shot in the face five times. [83] Applying the three-step framework in Kinkhead, the first step is to consider the probative value of the evidence in connection with what is in issue. As noted, the Crown says the 911 recording is relevant to the circumstances of the offence. Although that is one of the statutory criteria the jury is required to consider under s. 745.63(1), there is no dispute between the parties as to the circumstances of the offence. Mr. Kokotailo was found guilty of first degree murder, and the circumstances of the offence are set out in the agreed statement of facts. In this sense, there is no material fact in issue with regard to the circumstances of the offence. Nevertheless, I accept the Crown's submission that to properly consider and weigh the circumstances of the offence together with the other statutory criteria in s. 745.63(1), the jury must be given a fair appreciation of the brutality

of Mr. Kokotailo's crime and its effect on the victim's family. This includes the immediate impact on the victim's daughter Brittany, who actually witnessed the murder of her mother as reflected in the 911 recording. [84] The next step of the analysis is to consider the prejudicial effect of the 911 recording, either through its potential to distract the jury by focusing on facts that are not in issue, or through its potential misuse by the jury in assessing points which are in issue. In this case, the risk is that the jury will give the audio recording undue weight in view of its potential to inflame their passions, in a manner that causes the jury to overlook the other statutory criteria when deciding whether to grant a reduction in Mr. Kokotailo's parole ineligibility period. [85] The final step is to balance the probative value of the 911 recording against its prejudicial effect. I accept that the jury must be given a fair appreciation of the brutality of the crime and its effect on the victim's family. However, the circumstances of the offence are fully set out in the agreed statement of facts, which makes specific reference to the 911 call. In addition to this, the jury can be given an appreciation of the substance of what happened during the 911 call through the typewritten transcript. Having listened to the audio, I can say it has no additional factual content; it

simply underscores the obvious and severe trauma suffered by Brittany in witnessing the brutal murder of her mother. Thus, the audio recording has little or no additional probative value, and would serve only to inflame the jury. I do not think a curative instruction would address the prejudicial effect of placing the audio recording before the jury, considering its limited probative value. I conclude that the transcript of the 911 call is admissible, but the audio recording is not. [86] I should note finally that I have considered R. v. Byrnes, 2012 ONSC 2090 [Byrnes], and R. v. Powers, 2016 BCSC 2605 [Powers], two cases cited by the Crown in which 911 audio recordings were admitted at trial. In both cases, it was held that the probative value of the evidence outweighed its prejudicial effect. However, as explained in Kinkhead, the court must conduct a case-specific assessment of the probative value and prejudicial effect of the evidence. This requires careful consideration of what is actually in issue in the proceedings. Both Byrnes and Powers were rulings made at trial, where the 911 recordings were found to be probative of material facts in issue, in a context where the Crown had the ultimate burden to prove its case beyond a reasonable doubt. For all of these reasons, I do not consider the outcome in Byrnes or Powers to be of assistance in balancing the probative value and prejudicial effect of the 911 audio in the case at bar. "Riley J."