ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 17/13
DATE: 2013-10-01
BETWEEN:
HER MAJESTY THE QUEEN
– and –
L.W.
Defendant
Emily Roda, for the Crown
James Miglin, for the Defendant
HEARD: September 30, 2013
PUBLICATION RESTRICTION NOTICE
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
REASONS FOR DECISION
Mid-Trial Ruling Regarding the Admissibility
of Proposed Direct Evidence of the Accused
CONLAN J.
Introduction
[1] L.W. stands charged before a Judge and Jury in a multi-count Indictment alleging several sexual-related offences involving two alleged young victims.
[2] At the close of the Crown’s case, the Defence sought a ruling in advance as to the admissibility of certain proposed evidence to be elicited in direct examination of the accused.
[3] The Defence wishes to question Mr. W. about the date of his arrest on prior charges not before the Court but involving A.W., the mother and aunt of the two complainants here; details of what Mr. W. was arrested for; the fact that Mr. W. was ultimately found not guilty of those charges after a trial; and that A.W. testified at that trial, recanted and admitted that she had lied to the police.
[4] The Crown disputes the admissibility of the latter on the ground that it is impermissible hearsay evidence. It is common ground that the other proposed items are indeed admissible through the examination-in-chief of the accused.
[5] Further, Mr. W. may give evidence as to whether A.W. testified at his former trial.
Analysis
[6] Although there is no single, all-encompassing definition of what hearsay is, I find the following statement helpful from paragraph 6.2 of the textbook The Law of Evidence in Canada (Third Edition at page 229) by Justices Bryant, Lederman and Fuerst: the hearsay rule is that “written or oral statements, or communicative conduct made by persons otherwise than in testimony at the proceeding in which it is offered, are inadmissible, if such statements or conduct are tendered either as proof of their truth or as proof of assertions implicit therein”.
[7] A.W. has not testified at the trial, nor is she expected to be called as a witness.
[8] I agree with the Crown’s position. Evidence from Mr. W. as to what A.W. said at his former trial, including whether she said that she had lied to the police, is inadmissible hearsay evidence.
[9] Although the Defence has skillfully argued that such evidence is not being tendered for its truth, it is clear to me that the only reasonable inference of any probative value sought to be drawn by the jury is that A.W. lied to the police in making false allegations against Mr. W. that she later recanted at his trial.
[10] For the proposed evidence to be properly admissible, A.W. is required to testify and be available for cross-examination. Alternatively, the Defence may bring an Application under section 23 of the Canada Evidence Act (CEA) to admit in to evidence at this trial the testimony of A.W. at a prior judicial proceeding – the Preliminary Inquiry in the case at bar.
Conclusion
[11] Without prejudice to the Defence bringing an Application under the CEA, I rule that the proposed evidence to be elicited during the direct examination of Mr. W. is inadmissible.
Conlan J.
Released: October 1, 2013
COURT FILE NO.: 17/13
DATE: 2013-10-01
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
L.W.
Defendant
REASONS FOR dECISION
Conlan J.
Released: October 1, 2013