Voir dire in which Crown applied to admit prior inconsistent statement of an eyewitness to a homicide. Crown submitted the eyewitness was a “recanting witness who has not told the truth but did so on the prior occasion.” Witness recanted on the stand after an earlier statement to police that he observed the shooting. Witness was available (voluntarily attended court) and defence argued he did not lack total recall of the event.
Held: Application allowed; prior statement admissible.
Applying FJU, 1995 CanLII 74 (SCC) Court found that necessity was met as the witness had recanted and the testimony would be otherwise unavailable. Following Bradshaw, 2017 SCC 35 and regarding procedural and substantive reliability, Court found that there had been an opportunity to cross-examine the witness which alleviated that hearsay danger. On substantive reliability, Court found that “there is some external evidence which tends to confirm material aspects of the statement” Test for threshold reliability met.
B. Beresh – Defence Counsel