J. Zbarsky

During a murder trial, the Crown sought to re-open its examination-in-chief of a witness to refresh her memory using a prior statement, after having closed its examination but before cross-examination began.

The witness had given testimony inconsistent with her prior statement regarding the actions of the accused after the shooting.

The trial judge granted the request, applying the Coffin procedure and finding that allowing the Crown to refresh the witness's memory would not cause prejudice or trial unfairness, as the defence could cure any prejudice through cross-examination.

The defence applied to exclude evidence of prior discreditable conduct, known as the "Austin incident" in a murder and aggravated assault trial involving Tyrone Chambers and Joshua Warner.

The Austin incident, a minor assault accompanied by a threat to shoot, occurred shortly before the main shootings.

The defence argued its prejudicial effect outweighed its probative value.

The Crown contended the incident was relevant to the accused's knowledge of each other's gun possession, their willingness to back each other up, and the overall narrative of the night's events, forming part of a continuing transaction.

Applying the R. v. Handy test for similar fact evidence, the court treated the Austin incident as prior discreditable conduct but found its high probative value, particularly concerning narrative, the accused's knowledge and state of mind, Section 21 party liability, and self-defence, greatly outweighed the limited moral and reasoning prejudice.

The court ruled the evidence admissible.

During a second trial for second-degree murder, the Crown applied under section 715 of the Criminal Code to admit the prior trial testimony of a key witness who had left Canada for Ghana just before the trial commenced.

The court reviewed the principles from R. v. Potvin and subsequent jurisprudence regarding the principled approach to hearsay and the Crown's obligation to make reasonable efforts to secure testimony.

The court dismissed the application, finding that the Crown failed to establish necessity as it had not pursued alternatives like commission evidence or offered to fund the witness's return, and that admitting the evidence would operate unfairly against the accused.