Digest: R v Pinacie-Littlechief, 2018 SKQB 56

• Date: February 16, 2018

Reported as: 2018 SKQB 56

Docket Number: QB17487 , CRM 190/16 JCR

Court: Court of Queen's Bench

Date: 2018-02-16

Judges:

• Kalmakoff

Subjects:

• Criminal Law � Evidence � Admissibility - Hearsay

Digest: The accused was charged with second degree murder. She was alleged to have stabbed the victim during an altercation. The accused intended to raise a defence under s. 34 of the Criminal Code that what she did was for the purpose of defending herself or another person from an assault by the victim and that her actions were reasonable in the circumstances. She alleged that that the victim had sexually assaulted her 16-year-old cousin. The cousin had been found suffering significant injuries including head trauma. While the police were investigating the death of the victim, they interviewed the cousin. She gave two audio-recorded statements to them while she was in the hospital and said that she was highly intoxicated on the night of the victim�s death and had no recollection of how she suffered her injuries or who may have caused them. Two months later, when the police were investigating the possibility that she had been sexually assaulted, they interviewed the cousin again. The interview was audio and video-recorded and in it, she informed the police that she remembered that the victim had attacked her and slammed her head against the ground. The accused sought to have this out-of-court statement ruled admissible under the principled exception to the hearsay rule. The cousin was unable to testify at the accused�s trial because she had died shortly after being interviewed by the police.
HELD: The statement was ruled admissible. The court found that in the interests of trial fairness it was necessary to exercise its discretion to permit the statement to be adduced. In the circumstances, the statement met the requirement for necessity. Although cross-examination of the cousin could not take place, the jury would be able to assess all of her statements because they were recorded and that would establish threshold reliability.

Federal Statutes Considered:

• Charter of Rights, s 7
• Criminal Code, RSC 1985, c C-46, s 34

Cases Considered:

• R v Bradshaw, 2017 SCC 35, [2017] 1 SCR 865, [2017] 9 WWR 217, 99 BCLR (5th) 221
• R v Brown, 2002 SCC 32, [2002] 2 SCR 185, 285 NR 201, 210 DLR (4th) 341, 157 OAC 1, 162 CCC (3d) 257, 50 CR (5th) 1, 92 CRR (2d) 189
• R v Czibulka, 190 OAC 1, 189 CCC (3d) 199
• R v Khelawon, 2006 SCC...