Hearsay probative value must be measured against prejudicial effect and not by case strength: ONT CA

Case provides guidance on admissibility of hearsay and statement of recanting witness: lawyer

Hearsay probative value must be measured against prejudicial effect and not by case strength: ONT CA
Tom Lemon is trial crown and Marianne Salih is criminal lawyer for the respondent

In a drug trafficking trial, on an application to admit hearsay for the truth of its content against the witness who admitted to seeing the accused engage in a cocaine transaction, the Court of Appeal has found the trial judge erred in rejecting the trial Crown’s application and has ordered a new trial on the grounds that it is not the duty of the trial judge to determine the evidence necessary to process the case.

“The decision serves as a ‘one-stop shopping’ comprehensive review of the principles applicable to the admissibility of hearsay statements generally and the admissibility of a statement of a recanting witness specifically,” trial Crown for the appellant Tom Lemon says.

Lemon says the ruling is clear that necessity is met when a witness recants their prior statement, and the availability of a witness for cross-examination is the single most important procedural safeguard in determining the procedural reliability of an out-of-court statement.

The witness, Britany Simpson, provided the police with a statement that incriminated the respondent, Lance Rowe, on charges of possession of cocaine for the purpose of trafficking and possession of the proceeds of crime. However, Simpson recanted her statement at trial and testified in an “entirely distinct, exculpatory way.” 

In the face of her full recantation, the Crown applied to have the statement admitted for the truth of its contents under the principled exception to the rule against hearsay, but the trial judge denied the Crown’s application stating that the Crown’s case was strong and did not need to introduce Simpson’s statement for the content of its truth.

The Crown argued that the trial judge erred in his necessity analysis and approach to procedural and substantive reliability by failing to recognize the single most significant procedural safeguard present — the witness’s availability for cross-examination and treating the witness statement as if it was not video-recorded.

The court, in its decision, wrote that the trial judge made an error by approaching necessity from the perspective of what he thought the Crown needed to “make out its case.” 

“Every participant in a criminal trial operates within their own zone of responsibility. That is how fair trials that lead to just verdicts are best achieved. It was for the Crown, not the trial judge, to determine what evidence was necessary to prosecute the matter; it was for the trial judge to adjudicate upon any admissibility issues that might have arisen from the Crown’s decisions in that regard.”

The trial judge made an error by not measuring the statement’s probative value against its prejudicial effect but instead measuring the strength of the Crown’s case and concluding that the evidence was unnecessary, the court wrote. The probative value of the statement was high. “It was the only evidence of an actual hand-to-hand exchange of cocaine for money.”

“By excluding Ms. Simpson’s hearsay statement, the truth-seeking function of the trial was undermined. By keeping that account from the jury’s consideration, the jury was left to deliberate only on Ms. Simpson’s exculpatory account of what went on in the car that day. Its exclusion served to impede accurate fact finding”. (R. v. Khelawon, R. v. Bradshaw)

Citing errors in the procedural and substantive reliability analysis of the trial judge’s decision, the court wrote that “there were strong indicators of procedural reliability, the most important one being Ms. Simpson’s availability for cross-examination. Therefore, it was erroneous to conclude that the substantive reliability of the statement was insufficient to outweigh the complete lack of procedural guarantees of reliability. To the contrary, the substantive reliability of the statement simply added to the procedural guarantees present in this case, all pointing toward the admission of Ms. Simpson’s statement.”

Although the supreme court decision in R. v. Bradshaw instructs judges when determining substantive reliability to identify alternative, even speculative, explanations for a hearsay statement, Lemon says corroborative evidence, in this case, “shows that alternative explanations are unavailable such that the “striking” nature of the correspondence between what the witness told police and what was found in the respondent’s car clearly met the Bradshaw threshold.”

Lawyer for the respondent, Marianne Salih, says the jurisprudence has long held that necessity is made when a witness recants, therefore holding their prior statement hostage. However, in some passages, the trial judge seemed to treat necessity as whether it was necessary to the Crown’s case, which is not in line with the jurisprudence.

Salih says the court’s decision underscores that the parties are best positioned to decide how to approach their case, and the trial judge’s role must be reserved to adjudicate the case and not to give an opinion about the decision-making processes of the parties.

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