Welcome to “Cases That Should Have Gone to the Supreme Court of Canada, But Didn’t!”
In this episode, Kyla Lee from Acumen Law Corporation examines a case about the admission of prior testimony and out of court statements when a witness is unavailable at trial. At a preliminary inquiry, parties have the opportunity to cross-examine witnesses, and a transcript of that evidence is created. In certain circumstances, that prior testimony can later be admitted at trial under the principled exception to the hearsay rule, on the basis that it is both necessary and sufficiently reliable. In this case, the preliminary inquiry transcript was admitted, but a separate police interview given by the same unavailable witness was excluded. The Supreme Court of Canada declined to hear the appeal.
Key Points Discussed
– A witness testified at a preliminary inquiry and was cross-examined
– The witness later became unavailable for trial
– The preliminary inquiry transcript was admitted under the principled hearsay exception
– A separate police interview from the same witness was not admitted
– The case raised concerns about reliability and strategic decision-making at preliminary inquiries
– The Supreme Court of Canada denied leave to appeal
Why This Case Matters
The hearsay rule is designed to ensure reliability and fairness in criminal trials. While prior testimony may be admitted where there was an opportunity for cross-examination, that opportunity is shaped by strategy. Counsel may deliberately avoid exploring certain inconsistencies at a preliminary inquiry, intending to address them at trial. When a witness becomes unavailable and only the transcript is admitted, those strategic decisions can limit the ability to challenge the evidence fully.
Missed Opportunity for a National Standard
The Supreme Court of Canada could have clarified:
– How reliability should be assessed when both prior testimony and prior police statements exist
– Whether admitting one prior statement should open the door to admitting related statements
– How strategic decisions at preliminary inquiries should factor into admissibility analysis
– The relationship between necessity, reliability, and the right to make full answer and defence
Need for Clarity and Accountability
Without guidance, courts may continue to admit preliminary inquiry transcripts while excluding related prior statements that could assist in challenging credibility. This risks undermining the fairness of trials, particularly where defence strategy at the preliminary stage assumed the witness would testify again at trial. Clear direction from the Supreme Court would help ensure that evidentiary shortcuts do not compromise the integrity of the process.
Topics Covered
– Prior testimony at preliminary inquiries
– The principled exception to the hearsay rule
– Witness unavailability
– Reliability and necessity in evidence law
– The right to make full answer and defence
