R v Threefingers, 2016 ABCA 225 is a good case on the inadmissibility of Hearsay evidence. This case illustrates the difficulty courts have in admitting hearsay evidence if it does not meet the requirements under the Modern Principled Regime. Live questions of reliability will always give the accused a fighting chance in criminal proceedings.
This is a sexual assault involving a complainant with the mental age of 14 years. After the alleged sexual assault, the complainant made a video-taped statement recounting the details of the sexual assault. The trial judge admitted the video-taped statement for the truth of its contents even though there were serious question marks about the reliability of the statement. The trial judge also admitted expert evidence where there were serious question marks over the credentials of the expert.
The Court of Appeal notes that hearsay admissibility is a question of law reviewable on a standard of correctness. For the video-taped statement, the Court finds that while necessity was not an issue, the statement failed to meet threshold reliability, noting that
A) Procedural reliability was absent because the Complainant did not remember the videotaped statement or the alleged incident
B) Substantive reliability was absent because of a number of factors
i. There was no oath or caution given to the Complainant
ii. The Complainant did not wish to be at the police station, there was an indication that her mother was directing her statement including giving evidence at some points, the Complainant was high both at the time of the incident and during the statement;
iii. The Complainant suffered from a mental disorder and a problematic perception of reality, and many things described by the complainant were not backed by the evidence
The Court of Appeal also finds that the Expert Evidence was admitted in error, because of the inappropriate credentials of the expert.
The Court quashes the conviction and orders a new trial.
Categories: admissability, criminal lawyer edmonton, expert evidence, hearsay, lawyer edmonton, Uncategorized, ziv
Tags: admissibility, alberta criminal lawyer, edmonton criminal lawyer, expert evidence, hearsay, Rory Ziv