R. v. N.W.

R. v. N.W.

The Crown failed to establish threshold (substantive) reliability for admission of the videotaped statement: procedural safeguards were insufficient and corroborative evidence did not rule out plausible alternative explanations (notably that the witness lied to police to secure release). Intercepts corroborated the conspiracy but did not corroborate the confession; the purported corroborative detail ("leg room test") was as plausibly supplied by police as by the accused. Consequently the principled hearsay exception was not satisfied and the statement was excluded.

Citation
2017 NSPC 33
Parties
Crown: Her Majesty the Queen; Accused: W. (N.); Witness: M.C.O.
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
17 July 2017
Procedural Posture
Criminal Youth (murder/conspiracy) / Mid Trial Voir Dire on Admissibility of Hearsay (application Under Canada Evidence Act S.9(2) / Khelawon/bradshaw Application)
Outcome
Crown's application to admit the videotaped statement under the principled hearsay exception denied.
Legal Topics
Hearsay Admissibility, Principled Approach, Khelawon/bradshaw Jurisprudence, Confession, Voice Identification, Part VI Intercepts, Recantation/memory Loss
Source Language
English
Criminal Law Evidence Law Youth Justice Hearsay Admissibility Principled Approach Khelawon/bradshaw Jurisprudence Confession Voice Identification +2 more

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Parties

Her Majesty the Queen

Crown

W. (N.)

Accused

M.C.O.

Witness

Procedural Posture

Criminal Youth (murder/conspiracy) / Mid Trial Voir Dire on Admissibility of Hearsay (application Under Canada Evidence Act S.9(2) / Khelawon/bradshaw Application)

Legal Issues

  1. 1 Whether the videotaped out-of-court statement of a witness is admissible under the principled hearsay exception (necessity and reliability)
  2. 2 Whether procedural and/or substantive reliability established
  3. 3 Whether corroborative evidence rules out alternative explanations (e.g. lies to obtain release) on a balance of probabilities

Ratio Decidendi

The Crown failed to establish threshold (substantive) reliability for admission of the videotaped statement: procedural safeguards were insufficient and corroborative evidence did not rule out plausible alternative explanations (notably that the witness lied to police to secure release). Intercepts corroborated the conspiracy but did not corroborate the confession; the purported corroborative detail ("leg room test") was as plausibly supplied by police as by the accused. Consequently the principled hearsay exception was not satisfied and the statement was excluded.

Court Disposition

Crown's application to admit the videotaped statement under the principled hearsay exception denied.

Orders

  • Videotaped statement of M.C.O. not admitted into evidence and excluded for the purposes contested in the voir dire
  • Trial to proceed without the excluded statement