DATE: 20020311
DOCKET: C36053
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) - and - GREGORY HAYNES (Appellant)
BEFORE:
ABELLA, SHARPE and SIMMONS JJ.A.
COUNSEL:
David E. Harris
For the appellant
Ian D. Scott
For the respondent
HEARD:
March 5, 2002
RELEASED ORALLY:
March 5, 2002
On appeal from the conviction and sentence by Justice Arthur Whealy on November 27, 2000.
E N D O R S E M E N T
[1] We agree with the submissions of the appellant’s counsel that the indicia of reliability for the admissibility of Ms. Harper’s statement were insufficient to meet the threshold. The statement was taken without any prior warning to Ms. Harper alerting her to the consequences of making it. In particular, the police failed to advise Ms. Harper of the use that could be made of her statement in court or that she might herself be a witness.
[2] In this case, other than the availability of the witness for cross-examination and the audio taping, there were none of the other measures recommended in the case law to ensure reliability.
[3] It is clear from the reasons that the trial judge based his conclusion on an amalgam of identification evidence in convicting the appellant, including Ms. Harper’s statement. In view of how interrelated her statement appears to have been to this conclusion, a new trial is warranted.
[4] Accordingly the appeal is allowed, the conviction set aside, and a new trial ordered.
Signed: “R.S. Abella J.A.”
“Robert J. Sharpe J.A.”
“Janet Simmons J.A.”