M. A. Mousseau

During a homicide trial, the Crown brought an application under s. 9(2) of the Canada Evidence Act to cross-examine a witness on a prior videotaped statement to police after she claimed to have no memory of the events or the statement.

The Crown also sought to admit the statement for the truth of its contents under the principled approach to hearsay.

The court found that despite the lack of an oath and the witness's intoxication, the videotaped nature of the statement and the opportunity for cross-examination provided sufficient threshold reliability.

The statement was admitted into evidence.

Mid-trial, the co-accused obtained new counsel and pled guilty to manslaughter, agreeing to provide a statement and potentially testify against the applicant.

The applicant sought a mistrial, arguing the Crown's acceptance of the plea was a strategic abuse of process to secure testimony and that the new statement constituted late disclosure prejudicing his defence.

The court dismissed the application, finding no abuse of process in the Crown's plea negotiations and concluding that the applicant's ability to cross-examine the co-accused mitigated any prejudice from the late disclosure.

A mistrial was not necessary to prevent a miscarriage of justice.