R. v. L.B., (2002) 168 Man.R.(2d) 79 (PC)

• Judge: Joyal, P.C.J.
• Court: Provincial Court of Manitoba (Canada)
• Case Date: June 25, 2002
• Jurisdiction: Manitoba
• Citations: (2002), 168 Man.R.(2d) 79 (PC)

R. v. L.B. (2002), 168 Man.R.(2d) 79 (PC)

MLB headnote and full text

Temp. Cite: [2002] Man.R.(2d) TBEd. NO.034

Her Majesty The Queen v. L.B. (accused)

Indexed As: R. v. L.B.

Manitoba Provincial Court

Joyal, P.C.J.

June 25, 2002.

Summary:

The Crown brought a K.G.B. application, seeking to have admitted for its truth, a prior inconsistent out-of-court video statement given to police by a non-jointly tried co-accused.

The Manitoba Provincial Court denied the application.

Criminal Law - Topic 5522

Evidence and witnesses - Evidence of accomplices, co-defendants, informants, etc. - Out of court statements by co-defendant - The Crown sought to have admitted for its truth, a prior inconsistent out-of-court video statement given to police by a non-jointly tried co-accused - The Manitoba Provincial Court denied the application - Given the circumstances of the making of the statement and the heightened potential for untruth, the court was unable to find that sufficient indicia of reliability and circumstantial degrees of trustworthiness existed to allow the statement to be admitted for its truth - The court referred to four safeguards, which were absent in this case, which could have negated the potential for untruth - Additional reasons which prevented the court from finding threshold reliability were: (1) the co-accused's self-professed untruthfulness; (2) the accused's testimony respecting his level of sobriety at the time of taking the statement; (3) because the accused's testimony was dominated by an "inability to recall", defence counsel was effectively deprived of any meaningful opportunity to cross-examine him; and (4) the inability to cross-examine was not cured by the presence of any alternative contemporaneous cross-examination.

Criminal Law - Topic 5522

Evidence and witnesses - Evidence of accomplices, co-defendants, informants, etc. - Out of court statements by co-defendant - The Manitoba Provincial Court stated that the law did not categorically prohibit statements of a non-jointly tried co-accused from being tendered if compliance with the principles in R. v. K.G.B. could be demonstrated - However, the inherent dangers of such a statement required additional indicia of threshold reliability - The court referred to the following four safeguards which could negate the potential for untruth: (1) the statement could, but need not be, taken under oath or affirmation; (2) the statement should be taken with a connected warning about the potential consequences for the giving of a false statement; (3) the statement should be taken with a notification that it will be used or could be used against someone else; and (4) the statement should be taken with a notification that the making of a statement implicating someone else, could lead to the maker of the statement being called as a witness - See paragraphs 18 to 23.

Criminal Law - Topic 5524

Evidence and witnesses - Evidence of accomplices, co-defendants, informants, etc. - Videotape evidence - [See first Criminal Law - Topic 5522 ].

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - [See both Criminal Law - Topic 5522 ].

Cases Noticed:

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1; 19 C.R.(4th) 1; 79 C.C.C.(3d) 257, refd to. [para. 2].

R. v. Orpin (J.A.) (2002), 158 O.A.C. 201 (C.A.), refd to. [para. 9].

R. v. Pearson (R.A.) (1994), 82 B.C.A.C. 1; 133 W.A.C. 1; 36 C.R.(4th) 343 (C.A.), refd to. [para. 10].

R. v. Miller (1991), 50 O.A.C. 282; 9 C.R.(4th) 347 (C.A.), refd to. [para. 10].

R. v. Hawkins (K.R.) and Morin (C.), [1996] 3 S.C.R. 1043; 204 N.R. 241; 96 O.A.C. 81; 111 C.C.C.(3d) 129; 2 C.R.(5th) 245, refd to. [para. 13].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161; 147 C.C.C.(3d) 449; 36 C.R.(5th) 1; 190 D.L.R.(4th) 591; [2000] 11 W.W.R. 1, refd to. [para. 14].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353; 59 C.C.C.(3d) 92, refd to. [para. 14].

R. v. B.C. and K.G. (1993), 62 O.A.C. 13; 12 O.R.(3d) 608 (C.A.), refd to. [para. 18].

R. v. Seper (M.E.) (1997), 207 A.R. 296 (Prov. Ct.), refd to. [para. 25].

Counsel:

D. Tesarowski, for the Crown;

M. Glazer, for the accused.

This voir dire was held before Joyal, P.C.J., of the Manitoba Provincial Court, who delivered the following decision on June 25, 2002.