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EVIDENCE - Hearsay rule - Exceptions - Necessary and reliable evidence

Tuesday, August 06, 2019 @ 12:13 PM  


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Appeal by the accused, Piche, from a conviction and sentence for assault with a weapon, assault causing bodily harm and uttering threats. The accused's common-law spouse gave a cautioned, video recorded statement to police. In the statement, the spouse described an incident in which the accused extinguished a cigarette on her back, and a separate incident in which he bit her hand after she declined to give him a cigarette. She stated that she attended the detachment after the accused refused to let her see her child and told her he would kill her if he found her alone. At trial, the spouse testified that she could not remember the incidents or giving her statement to police. During the voir dire, the spouse stated she remembered giving the statement, agreed she tried to tell the truth, but stated she did not want to talk about it. The statement was admitted for the truth of its contents under the principled exception to the hearsay rule. The accused's defence involved a denial of the incidents, and the contention they were fabricated in the hope of exerting pressure to access his residential school settlement monies. The accused was convicted. Following a sentencing hearing, the accused was declared a dangerous offender and sentenced to an indeterminate sentence. The accused appealed the conviction and sentence.

HELD: Appeal from conviction dismissed; appeal from sentence allowed. The trial judge's brief reasons for admitting the video statement were responsive to the parties' submissions and permitted meaningful appellate review. The trial judge did not err in admitting the spouse's statement for the truth of its contents given the procedural reliability safeguards. The reasons for conviction reflected the trial judge's wholesale rejection of the accused's testimony and were sufficient to permit meaningful appellate review. No error or misapprehension of the evidence arose from the trial judge's assessment of credibility. The verdict was reasonable. No miscarriage of justice arose from the conduct of the trial, including its haste, the brevity of the reasons, or the trial judge's treatment of defence counsel. In sentencing the accused, the trial judge did not have the benefit of the Supreme Court's subsequent Boutilier decision. As a result, the trial judge erred with respect to the approach to sentencing and imposition of sentence. It could not be said that the same result would have occurred had the trial judge had the benefit of Boutilier. A new sentencing hearing was ordered.

R. v. Piche, [2019] S.J. No. 233, Saskatchewan Court of Appeal, G.R. Jackson, P.A. Whitmore and J.A. Ryan-Froslie JJ.A., June 17, 2019. Digest No. TLD-August52019003