Case information

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Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Criminal law - Evidence - Prior inconsistent statement - Whether the trial judge erred in law when he found that Ms. Pawliw’s prior inconsistent statement was sufficiently reliable to be admitted as evidence - Whether the trial judge erred in law when he relied upon Ms. Pawliw’s prior inconsistent statement to convict the Appellant - Whether the trial judge committed an error in law by rendering a verdict that was unreasonable and not supported by properly admitted evidence.

In November 2004, Mr. Schroeder and his companion, Cindy Pawliw, were staying at a hotel in Hinton, Alberta. On or about November 19, 2004, Mr. Schroeder was assaulted in their hotel room and $,1000 was taken from him. He was hospitalized because of the significant injuries which resulted from the assault. The RCMP commenced an investigation following the incident, but neither Mr. Schroeder nor Ms. Pawliw were willing to give a statement. The investigation ceased.

On February 2, 2005, Mr. Schroeder was assaulted again. Following this second assault, Mr. Schroeder and Ms. Pawliw both provided statements to the police identifying the individuals who had assaulted Mr. Schroeder. Ms. Pawliw, who had not witnessed the February incident, gave a statement relating to the events which had occurred in November. Mr. Schroeder gave a statement regarding both the November and the February incidents. Ms. Pawliw’s statement was videotaped and recorded. She identified the Appellant by name as one of the persons who had robbed and assaulted Mr. Schroeder in November 2004. She had not witnessed the February assault and her statement contained no first hand evidence regarding that incident. At trial, Mr. Schroeder and Ms. Pawliw recanted their earlier identification of the Appellant as the perpetrator of the offences.

The trial judge concluded that the threshold tests of necessity and reliability for admission of Ms. Pawliw’s prior statement were met, and held that the statement was sufficient to satisfy him beyond a reasonable doubt that the Appellant had robbed and assaulted Mr. Schroeder in November. He found the Appellant guilty of robbery and assault in relation to the November charges. There was insufficient evidence concerning the February charge and that charge was dismissed. On appeal, the majority of the Court of Appeal dismissed the appeal. Berger J.A., dissenting, would have allowed the appeal on the basis that the trial judge had erred in concluding that the tests for threshold and reliability had been made out for the admission of Ms. Pawliw’s statement. The statement should have been excluded. If properly admitted, it should not have been relied upon.