R. v. Biscette, [1996] 3 S.C.R. 599

Stephen Biscette Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Biscette

File No.: 24787.

1996: October 31.

Present: Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

on appeal from the court of appeal for alberta

Criminal law -- Evidence -- Crown disclosure -- No prejudice to accused’s right to full answer and defence -- Proper consideration given to indicia of reliability and necessity in admitting the evidence.

APPEAL from a judgment of the Alberta Court of Appeal (1995), 1995 ABCA 234, 169 A.R. 81, 97 W.A.C. 81, 99 C.C.C. (3d) 326, 31 C.R.R. (2d) 38, dismissing an appeal from conviction by Virtue J. (1994), 1994 9129 (AB QB), 150 A.R. 209, 28 C.R. (4th) 78. Appeal dismissed.

Rupert N. Joshi, for the appellant.

Elizabeth Hughes, for the respondent.

The judgment of the Court was delivered orally by

[1] L’Heureux-Dubé J. -- We are of the view that this appeal should be dismissed. With regard to the issue of the late Crown disclosure, we are not persuaded that there was any prejudice to the appellant’s ability to effect his right to full answer and defence, and would dismiss this ground substantially for the reasons of Côté J.A. in the Court of Appeal (1995), 1995 ABCA 234, 169 A.R. 81.

[2] We would also dismiss the second ground of appeal. In our view, the K.G.B. application proceeded correctly and the trial judge properly considered the indicia of reliability and necessity in admitting the evidence. As Côté J.A. stated, where defence counsel is unable to effect a complete cross-examination owing to a witness’ failure of memory, this alone is not a reason to bar admission of the prior inconsistent statement for its substantive use. Rather, it is a factor to be considered in respect to the weight of the prior statement. We see no reason to interfere with the trial judge’s finding on this ground.

[3] The appeal is dismissed.

Judgment accordingly.

Solicitors for the appellant: Joshi & Dunlop, Calgary.

Solicitor for the respondent: The Attorney General for Alberta, Edmonton.