Summary

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Summary

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Criminal Law – Evidence – Hearsay – Threshold reliability – Admissibility of former co-accused’s hearsay statement – Whether Court of Appeal erred in elevating test for threshold reliability – Use of extrinsic evidence in assessment of threshold reliability – Appropriate contextual analysis in assessment of threshold reliability.

Two people were shot to death five days apart. A co-accused became the target of a Mr. Big investigation, during which he told an undercover officer that he alone was the shooter in both killings. When he met Mr. Big, he said that the respondent shot one victim and assisted killing the other victim. The co-accused was arrested and charged with two counts of first degree murder. In police interviews, he first denied involvement, then he described the murders and implicated others but not by name, then he confessed, then he re-enacted the murders and alleged that the respondent shot the second victim and helped in the first murder. At the respondent’s trial, the co-accused refused to be sworn. The Crown sought to admit a recording of his re-enactment for the truth of its contents. The trial judge admitted the recording under the principled exception to the hearsay rule. A jury convicted the respondent on two counts of first degree murder. The Court of Appeal held that the recording of the co-accused’s re-enactment should not have been admitted. It set aside the convictions and ordered a new trial on both counts.

Lower Court Rulings