Case information

Criminal law — Evidence — Evidence of victim or witness who has disability — Accused convicted of first degree murder — Accused arguing trial judge erred in admitting under s. 715.2 of Criminal Code video-recorded police statement of Crown witness who has disability and whom at trial no longer had any memory of events described in statement — Whether s. 715.2 requires witness to be able to confirm truth of statement based on present memory of events — Whether Court of Appeal erred in law in its interpretation of s. 715.2(1), and accordingly erred by upholding trial judge’s decision to admit video-recorded statement of Crown witness for truth of its contents, even though witness had no present recollection of events described in statement and thus could not be subjected to meaningful cross-examination.

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After a trial by judge and jury, the applicant, Mr. Jason Osborne, was convicted of first degree murder in the death of Ms. Karina Neff. He was sentenced to life imprisonment without eligibility for parole for 25 years. Mr. Osborne appealed his conviction on two grounds. First, he argued that the trial judge erred in admitting under s. 715.2 of the Criminal Code the video-recorded police statement of Mr. Osmond, a Crown witness who has a disability and whom at trial no longer had any memory of the events described in the statement. Second, Mr. Osborne argued that the trial judge erred in dismissing his application for a mistrial after Crown counsel made certain remarks in his closing address about the evidence of the defence’s expert forensic psychologist. The Court of Appeal dismissed the appeal. The issue in the proposed appeal to this Court is whether the courts below erred by interpreting s. 715.2 as permitting the statement to be adduced for its truth even though Mr. Osmond’s lack of memory made meaningful cross-examination impossible.