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EVIDENCE - Admissibility - Hearsay rule - Exceptions

Friday, June 26, 2020 @ 5:35 AM  


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Appeal by the Crown from the respondent’s acquittal on charges of robbery, sexual assault causing bodily harm, uttering threats and unlawful confinement. Towards the end of a nine-day trial, the trial judge, without hearing from the Crown, dismissed the Crown’s application to introduce into evidence the complainant’s unsworn statement to the police as a principled exception to the hearsay rule. The complainant was distraught and had difficulty giving evidence. She absconded before her direct examination was completed. The trial judge dismissed the Crown’s application to introduce into evidence the complainant’s unsworn statement on the basis that the necessity criterion was not made out. He held that the necessity component of the Wigmore approach to the principled application of the hearsay rule could be made out if the witness was not deceased, could not be located, failed to respond to a subpoena, was incompetent, or incapable of testifying. He concluded that the Crown could not meet this demanding formulation of the test. The complainant had responded to warrants and maintained contact with the police. The trial judge concluded she did not want to testify because she did not like the pressure or being put on the spot and talking to everyone.

HELD: Appeal allowed. New trial ordered. The trial judge erred in dismissing the Crown’s application without hearing from Crown counsel. While a trial judge could dismiss a meritless application without conducting a voir dire, this could not be done without first hearing from the proponent as to the facts and the law that supported the application. The outcome of the Crown’s application was pivotal in terms of result. There was no reason to conclude that the pre-application exchanges between the trial judge and Crown counsel gave Crown counsel a fair opportunity to marshal the facts and the law and present them in the most convincing manner possible. Crown counsel reasonably expected that the occasion for full argument would arise after he made his application. This error stripped the trial of its fundamental fairness. The trial judge’s articulation of the necessity component of the Wigmore approach to the principled application of the hearsay rule was incorrect. His focus on the availability of the witness as opposed to her evidence was an error. The fact that she appeared and testified for a short time did not mean that the court had the benefit of her evidence. The verdict would not necessarily have been the same had the errors not occurred. The likelihood the outcome would have been different was high enough to justify a new trial.

R. v. Abdulkadir, [2020] A.J. No. 604, Alberta Court of Appeal, M.S. Paperny, T.W. Wakeling and R. Khullar JJ.A., May 22, 2020. Digest No. TLD-June222020010