The accused, charged with second degree murder, conspiracy to commit arson, arson causing bodily harm, and arson with intent to defraud in relation to a fatal business fire, challenged the Crown’s attempt to introduce numerous out‑of‑court statements under the co‑conspirators’ exception to the hearsay rule.
The court reviewed the Carter three‑stage test governing admissibility and considered whether a pre‑trial voir dire was required to assess whether the statements were capable of falling within the exception and whether they satisfied the principled approach to hearsay, including necessity and reliability.
The judge held that a voir dire was appropriate where the defence raised credible concerns about whether statements were made in furtherance of a conspiracy or where the availability of declarants raised necessity issues.
Several statements were admitted as capable of meeting the Carter requirements, particularly where declarants were deceased or unavailable and the statements furthered either the alleged arson conspiracy or a post‑offence cover‑up.
Statements attributed to an available witness with significant credibility concerns were excluded because the necessity and reliability requirements of the principled approach were not met.
