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EVIDENCE - Hearsay rule - Exceptions - Necessary and reliable evidence

Monday, May 13, 2019 @ 11:10 AM  


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Appeal by the accused from conviction for second degree murder and attempted murder. The appellant allegedly shot the victims. Shortly after the shooting, police observed the appellant outside of, and entering, a nearby residence. He was seen to be acting suspiciously and appeared to be trying to hide something behind his back. Upon the police attending to the residence and being allowed entry, the appellant, along with several other individuals, were located inside. Because of further police investigation, the appellant was detained, and the residence was searched. A live bullet was located on the stairs to the basement and a rifle with a casing inside was found in the basement. The casing seized from across the street from where the deceased was shot matched the rifle. The appellant was not the owner of the residence, did not lease the residence and was not listed on the lease as a person who was permitted to reside there. The appellant argued that the police violated his s. 8 Charter rights when they conducted a warrantless search of the residence. He argued the trial judge erred in declaring one of the Crown witnesses to be hostile and allowing the Crown to cross-examine the witness at large pursuant to the common law.  He further argued that she erred when she admitted as evidence the police statement given by the witness pursuant to the principled approach to hearsay.

HELD: Appeal dismissed. The trial judge did not err in fining that the appellant did not have a reasonable expectation of privacy in the residence and therefore had no standing to make a s. 8 application. While the appellant had established a subjective expectation of privacy in the residence, he had not established that his expectation was objectively reasonable. The search of the residence for other people, including the owners or anyone who might be injured or in possession of a gun, was also lawful pursuant to the common law duty and corresponding authority of the police to keep the peace and preserve life. The trial judge gave clear, accurate and considered reasons for declaring the witness hostile. A finding of hostility did not require that the judge found the witness motivated by dislike or enmity towards the police or Crown. The trial judge correctly stated the legal principles regarding the admissibility of the statement based on procedural reliability. She did not err in failing to consider whether the statement was substantively reliable. Substantive reliability was not required to be shown because of the significant indicia of procedural reliability in this case, including the ability of the appellant to cross-examine the witness.

R. v. Okemow, [2019] M.J. No. 92, Manitoba Court of Appeal, D.M. Cameron, J.A. Pfuetzner and K.I. Simonsen JJ.A., April 5, 2019. Digest No. TLD-May132019001