HMTQ v. Ellard

HMTQ v. Ellard

The court admitted G.O.'s prior sworn testimony from the Ellard trial under s.715(1) because G.O. is deceased, the testimony was given in the accused's presence, the accused had full opportunity to cross-examine (extensive cross-examination by experienced counsel), the evidence is highly probative and corroborated, and admission would not be unfair; the court exercised its residual discretion to exclude the portion of G.O.'s testimony from the Glowatski trial concerning the jacket identification because its probative value was slight, reliability questionable and prejudicial effect outweighed probative value.

Citation
2004 BCSC 777
Parties
Crown: Her Majesty the Queen; Accused: Kelly Marie Ellard
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
9 June 2004
Procedural Posture
Criminal Second Degree Murder Retrial / Pre Trial Voir Dire on Admissibility of Prior Testimony
Outcome
Prior testimony of G.O. from the Ellard trial admitted; G.O.'s testimony from the Glowatski trial excluded.
Legal Topics
Section 715 Criminal Code, Principled Exception to Hearsay, Prior Testimony Admissibility, Residual Judicial Discretion
Source Language
English
Criminal Law Evidence Hearsay Procedure Section 715 Criminal Code Principled Exception to Hearsay Prior Testimony Admissibility Residual Judicial Discretion

Case Brief

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Parties

Her Majesty the Queen

Crown

Kelly Marie Ellard

Accused

Procedural Posture

Criminal Second Degree Murder Retrial / Pre Trial Voir Dire on Admissibility of Prior Testimony

Legal Issues

  1. 1 Whether prior testimony of G.O. from the Ellard trial is admissible under s.715(1) of the Criminal Code
  2. 2 Whether portions of G.O.'s testimony from the Glowatski trial are admissible under the principled exception to the hearsay rule
  3. 3 Whether the accused had full opportunity to cross-examine G.O.

Ratio Decidendi

The court admitted G.O.'s prior sworn testimony from the Ellard trial under s.715(1) because G.O. is deceased, the testimony was given in the accused's presence, the accused had full opportunity to cross-examine (extensive cross-examination by experienced counsel), the evidence is highly probative and corroborated, and admission would not be unfair; the court exercised its residual discretion to exclude the portion of G.O.'s testimony from the Glowatski trial concerning the jacket identification because its probative value was slight, reliability questionable and prejudicial effect outweighed probative value.

Court Disposition

Prior testimony of G.O. from the Ellard trial admitted; G.O.'s testimony from the Glowatski trial excluded.

Orders

  • Admit into evidence the prior sworn testimony of G.O. from the Ellard trial under s.715 of the Criminal Code
  • Exclude the proffered portions of G.O.'s testimony from the Glowatski trial (jacket identification) as inadmissible under the principled exception/exercise of residual discretion