Ontario Criminal


Evidence

HEARSAY
Reproduction of statement and video recording eliminated danger of inaccurate recounting

Accused appealed his convictions for series of weapons related offences. Accused and his brother were angry at their half brother for not being at hospital when their sister died. Accused’s brother phoned half brother to tell him not to join other family members at their mother’s to mourn their loss. Half brother ignored warning, and, with his girlfriend, drove to his mother’s townhouse to join his brothers and other family members and friends. As he approached his mother’s house, half brother called 9-1-1 and reported that accused had gun. When police arrived, they saw brothers arguing in courtyard outside townhouse. Officers also saw friend of accused’s brother leave townhouse carrying black duffle bag. Bag seemed to have something long and heavy in it. When friend saw police, he took bag back into townhouse. Officers were invited into townhouse. Officers found black bag on top of washing machine. Inside bag police found sawed-off Winchester shotgun, M-1 Carbine rifle, and high capacity magazine suitable for use in rifle. Accused and man police saw carrying bag were arrested. Man seen carrying bag gave statement Crown wished to introduce. Accused alleged trial judge erroneously wrongly admitted hearsay statement of Crown witness. Trial judge admitted accused’s friend’s videotaped statement under principled exception to hearsay rule. Necessity was not issue. Friend had recanted when giving evidence. Trial judge was also satisfied, despite absence of oath and warning about consequences of making false statement, that statement satisfied reliability requirement. Appeal dismissed. Out-of-court statement was videotaped in its entirety. Reproduction of statement and video recording eliminated danger of inaccurate recounting. Important factor underlying rule excluding hearsay evidence. Witness was available for cross-examination. Absence of oath and warning not fatal to admissibility of out-of-court statement. In its material features statement was consistent with contents of half brother’s 9-1-1 call of which friend could have had no knowledge when he gave his statement.

R. v. Adjei (Aug. 12, 2013, Ont. C.A., M. Rosenberg J.A., David Watt J.A., and S.E. Pepall J.A., File No. CA C54638) 108 W.C.B. (2d) 651.

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