SCC says witness statement should not have been admitted in criminal case, orders new trial

The Court of Appeal for Quebec erred when it determined that a student’s out-of-court statement could be admitted as evidence in a criminal trial that resulted in another student’s conviction, so a new trial should be held, the Supreme Court of Canada ruled in a 4-3 decision Wednesday.

“Because the witness is an accomplice, there is a very real danger that he tried to shift his responsibility onto the accused in his statement,” Justice Mary Moreau wrote for the majority. “It was to the witness’s advantage to provide an account that limited his participation… avoiding the charges that involved a greater degree of participation.”

Justices Andromache Karakatsanis, Sheilah Martin, and Mahmud Jamal concurred.

Justices Suzanne Côté and Nicholas Kasirer jointly authored a dissenting opinion, arguing the trial judge in the case made “no reviewable error” by making an exception to a rule against hearsay evidence and accepting the student’s statement. Justice Malcolm Rowe joined the dissenting justices.

In 2016, the student, K.A., was in a washroom with the appellant and a third student, Fares, at their school. The appellant approached a fourth student, the complainant in the case, and threatened him with a pistol. The complainant had previously asked the appellant to stop bothering his girlfriend.

The next day, K.A. was arrested and taken into custody for possessing a firearm for a dangerous purpose, carrying a concealed firearm, possessing an imitation firearm, uttering death threats, and assault with a weapon. K.A. was accompanied by his mother and questioned by the police.

K.A. provided the police with a written statement, which said he was in possession of two pellet pistols belonging to Fares. According to his statement, he had given one of the pistols to the appellant in the washroom but was not aware of the issues between the appellant and the complainant. K.A. also disclosed in his statement that the pistols were currently in a drawer at his house. 

The police searched K.A.’s home and found the pistols in the drawer. K.A. then plead guilty to a charge of carrying a weapon for a purpose dangerous to the public peace.

K.A. was later called as a witness at the appellant’s trial. During a voir dire proceeding, a trial judge admitted K.A.’s out-of-court statement as trial evidence. At trial, the court found the appellant guilty of assault with a weapon, using an imitation firearm in the commission of an assault, and uttering threats.

In a split decision, the court of appeal agreed with the trial judge, noting the similarities between K.A.’s statement and the complainant’s testimony.

The SCC’s task was to consider two issues: should the court of appeal have admitted K.A.’s statement as evidence, even though that statement qualified as hearsay evidence, which is “presumptively inadmissible”? And did the appeals court err when it determined that K.A.’s statement had met a reliability standard, based on its resemblance to the complainant’s testimony?

According to the SCC majority, hearsay evidence can be admitted as evidence when it is both necessary and meets certain reliability standards. To meet the reliability standards, one can only rely on corroborative evidence if it shows that “the only likely explanation for the hearsay statement is the declarant’s truthfulness about or the accuracy of, the material aspects of the statement.”

K.A.’s statement raises reliability concerns because he was an accomplice in the crime, the majority said. “There is a very real danger that K.A. tried to shift his responsibility onto the appellant in his statement,” the majority added. “Indeed, as the appellant notes, K.A.’s statement places much of the responsibility on Fares and the appellant.”

The majority said there was no connection between the police’s discovery of the pistols at K.A.’s home and the appellant’s degree of involvement in the crime, so the fact that one aspect of K.A’s statement was accurate is not, on its own, “capable of ruling out plausible alternative explanations for the events.”

The majority also noted that the complainant’s testimony, which was used to corroborate K.A.’s statement, was not part of the voir dire proceeding and, therefore, could not be used to determine the reliability of K.A.’s statement.

“On appeal, the only possible avenue for considering the complainant’s testimony is the curative proviso. However, the Crown chose not to invoke that provision before this court,” the majority said.

In their dissent, Côté and Kasirer wrote that they agreed with the court of appeal’s decision to admit K.A.’s out-of-court statement as evidence.

They said there was “indeed a logical connection between the aspect of [K.A.’s] statement pertaining to the presence of the weapon in the washroom, corroborated by the discovery of the weapon at the witness’s residence, and the aspect of the statement pertaining to the handling of that same weapon by the accused at the same time and in the same location.”

Côté and Kasirer said they would dismiss the appellant’s appeal but agreed with the majority that “the curative proviso is the appropriate mechanism for considering, on appeal, evidence admitted at trial that was not produced on the voir dire, like the complainant’s testimony in this case.”

Counsel for the parties did not respond to requests for comment.