Statement of Facts Signed as Part of Plea Bargain Inadmissible in Trial of Co-accused: Unpacking Youvarajah

The accused and D.S. (tried and sentenced separately as a young offender) were arrested and charged with first-degree murder. D.S. pleaded guilty to second-degree murder. As part of D.S.’s plea agreement, Crown counsel, with input from defense counsel, prepared a statement of facts, which was signed by D.S. According to the statement, the accused supplied D.S. with a gun and ordered D.S. to shoot the victim.

During the accused’s trial, D.S. recanted and denied the appellant’s involvement in the murder. D.S. testified that he could not remember signing the statement of facts and that he did not understand the words “acknowledged” or “accurate” as used at the time he plead guilty. In face of the recantation, the Crown sought to admit the statement of facts for the truth of its contents. The trial judge ruled the statement was inadmissible because it failed to meet the requirement of “threshold reliability.”

The accused was subsequently acquitted; however, the Crown successfully appealed the acquittal. The Ontario Court of Appeal found that the trial judge erred in assessing whether the statement of facts was reliable enough to be admissible into evidence and ordered a new trial [2011 ONCA 654]. Ultimately, the accused prevailed at the Supreme Court of Canada, who upheld the initial ruling and restored the acquittal [2013 SCC 41].

Why Was the Agreed Statement of Facts Inadmissible?

It may seem troubling that a court could accept the reliability of the statement at D.S.’s plea hearing and enter a conviction for murder while refusing to weigh the statement as evidence in another proceeding. As the two dissenting judges at the Supreme Court query, what does this say about the administration of justice?

The statement of facts was hearsay evidence, offending the rule against admitting out of court statements for the truth of their contents, unless the party seeking admission can establish the evidence is both necessary and reliable. When a witness recants, the necessity of tendering prior statements by the witness is generally established, making reliability the key issue. To be clear, the issue was not the strength of the evidence, but whether the evidence was reliable enough to be considered by the trier of fact.

Several issues caused problems for the Crown. First, the Crown and the police failed to follow the procedures outlined in KGB [1993] 1 S.C.R. 740, the Court’s seminal case on the admissibility of prior inconsistent statements. Specifically, a videotape of the statement being made after a sworn oath was not recorded. The Court pointedly comments that these procedures are routinely available, especially in homicide cases.

The failure to conform to KGB was severely aggravated by the impracticality of cross-examination. D.S. invoked solicitor-client privilege, placing severe limits on what lines of questioning could be pursued with respect to his decision to accept a plea bargain and implicate the accused. In combination with D.S.’s “memory lapses,” the trial judge concluded that cross-examination would be “to a large extent illusory.” The SCC acknowledged that the trial judge might have overstated the significance of solicitor-client privilege, a factor that played a central role in the Court of Appeal’s decision to order a new trial. Limited cross-examination of D.S’s understanding of the statement and the plea deal would have been permissible. However, the SCC concluded that the limited availability of cross-examination would not have materially affected the trial judge’s decision; the statement would still have been too unreliable to admit.

In addition to failing to establish procedural guarantees of reliability, the Crown was unable to show that the circumstances of the statement rendered it inherently trustworthy. It is true that D.S.’s guilty plea was a solemn occasion. Furthermore, the fact that the accused was acting against his own interest in admitting his culpability is a significant circumstantial indicia of reliability. The problem arises when the Crown sought to use the statement against a third party. The statement that the accused supplied D.S. with a gun and told D.S. to shoot the victim was self-serving in that it tended to shift responsibility from D.S. to the accused. Thus, the rationale for accepting D.S.’s admission of culpability at the time of his guilty plea did not extend to his statements implicating the accused.

So what can the Crown do to prevent a repeat of this case? The best answer may be to follow KGB and ensure that statements are taken under oath and recorded on video. Admittedly, where the declarant is simply acknowledging and signing a prepared statement of facts, as was the case in R v Youvarajah, it is questionable how much value there will be in recording. Perhaps a video record of the declarant reviewing and/or deliberating over the statement would help establish the extent to which the statement was acknowledged and understood. Having the declarant make the statement in his or her own words would be another way to lay the groundwork for a successful KGB application.

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