Scarlet Smith

A witness subpoenaed in a murder trial refused to answer questions after being sworn, despite being warned that his refusal could result in contempt.

At a show cause hearing, the witness testified that he declined to testify because of concerns about his reputation in prison and potential consequences of being perceived as an informant.

The court reviewed the elements of contempt in the face of the court, including actus reus and mens rea, and considered whether the defence of duress applied.

The court found the refusal to testify was deliberate and interfered with the administration of justice.

The defence of duress was rejected because the evidence did not establish threats of death or serious bodily harm.

In a homicide prosecution, the Crown sought to introduce several hearsay statements attributed to a deceased victim and to unidentified bystanders during a fight.

The court considered whether the statements fell within the res gestae exception to the hearsay rule and whether they satisfied reliability requirements under the principled approach articulated in R. v. Khelawon.

The court admitted a statement reported by a witness that the victim said “Budja stabbed me” and described others holding him down, finding it spontaneous and proximate to the startling event and not so unreliable as to warrant exclusion.

However, statements allegedly shouted by unidentified bystanders during the fight were ruled inadmissible for the truth of their contents because the declarants were unknown and reliability could not be assessed.

Those statements were admissible only for the non-hearsay purpose of demonstrating what may have been audible to the accused during the altercation.