Supreme Court


Cross-examination of co-accused would not be adequate procedural safeguard

Accused charged with first degree murder. Separately charged co-accused pleaded guilty to second degree murder. Co-accused admitted agreed statement of facts (“ASF”) implicating accused as killer. At accused’s trial co-accused recanted ASF and denied accused was responsible. Crown sought to introduce ASF for its truth. Co-accused asserted solicitor-client privilege when questioned about conversations with his lawyer about plea and ASF. Trial judge found that Crown had not established threshold reliability for ASF and that privilege would hinder full cross-examination of co-accused. Trial judge ordered directed verdict of acquittal. Court of Appeal set aside acquittal and ordered new trial. Appeal allowed and acquittal restored. Trial judge did not err in declining to admit ASF. Circumstances of ASF enhanced reliability of co-accused’s admissions of responsibility but not of his statements blaming accused. Cross-examination of co-accused at trial would not be adequate procedural safeguard to establish threshold reliability.

R. v. Youvarajah (Jul. 25, 2013, S.C.C., McLachlin C.J.C., Fish J., Abella J., Rothstein J., Cromwell J., Karakatsanis J., and Wagner J., File No. 34732) Decision at 98 W.C.B. (2d) 212 was reversed.  108 W.C.B. (2d) 653.

cover image


Subscribers get early and easy access to Law Times.

Law Times Poll

Law Times reports that there is no explicit rule that lawyers in Ontario must be competent in the use of technology. Do you think there should be explicit rules spelling out the expectations of lawyers’ in terms of tech use in their practice?