R. v. Devine The Principled Exception to the Hearsay Rule Applied

The Supreme Court’s decision last week in R. v. Devine, 2008 SCC 36, is fairly simple, a straightforward application of existing caselaw to an unresolved issue of the rule of law as regards the admissibility of hearsay evidence under certain circumstances.

Robert Devine was accused of robbing and assaulting one Robert Schroeder on two separate occasions: November of 2004 and February of 2005. Schroeder and his companion, Cindy Pawliw, who witnessed the first incident, both refused to give a statement to police immediately following the first assault; however, after the second incident, they both gave a statement to police identifying Mr. Devine as the assailant. At trial, both witnesses recanted their identification of Mr. Devine as the assailant. In particular, Ms. Pawliw testified that she had previously identified Mr. Devine because somebody else had suggested to her it was him.

As a result, the testimony in question was considered hearsay and therefore inadmissible. Nevertheless, the Crown moved for leave to introduce the evidence at trial under the principled exception to the hearsay rule introduced in R v. B. (K.G.), [1993] 1 S.C.R. 740. In that case, the Supreme Court affirmed that prior-inconsistent statements could be introduced into court if these conditions were met:

(1) the evidence contained in the prior statement is such that it would be admissible if given in court; (2) the statement has been made voluntarily by the witness and is not the result of any undue pressure, threats or inducements; (3) the statement was made in circumstances, which viewed objectively would bring home to the witness the importance of telling the truth; (4) that the statement is reliable in that it has been fully and accurately transcribed or recorded; and (5) the statement was made in circumstances that the witness would be liable to criminal prosecution for giving a deliberately false statement.

The trial judge found that Ms. Pawliw’s statement was admissible on these grounds, and used it to help convict Mr. Devine of the charges stemming from the November incident. Since Ms. Pawliw’s statement only referred to the November incident, the trial judge acquitted Mr. Devine of the charges stemming from the February incident.

Mr. Devine appealed, arguing that the statement was unreliable, and as such failed to satisfy the fourth provision cited in R. v. B. (K.G.). Mr. Devine specifically suggested that the time between the first assault in November and Ms. Pawliw’s statement in February diminished its reliability. He further argued that the verdict was unreasonable on the basis that the overall reliability of the statement – uncorroborated and coming from Ms. Pawliw, an admitted drug user – was so diminished as to render it an unworthy candidate for admission under the principled exception to the rule of hearsay.

The Alberta Court of Appeal, in a 2-1 decision, rejected both grounds of appeal, deciding that the trial judge considered the factors relating to the reliability of the statement properly. (Berger J.A. dissented on the basis that since Pawliw’s admittedly tenuous statement was essential for the conviction, the conviction was unreasonable.)

The Supreme Court, upon Devine’s final appeal, unanimously concurred with the Alberta Court of Appeal. Justice Charron cited R. v. Khelawon, [2006] 2 S.C.R. 787, to explain that the reliability requirement for the principled exemption to the hearsay prohibition can be met either by demonstrating that there is no concern about the truthfulness of the statement because of the circumstances in which it was made, or by showing that the statement’s truth and accuracy can be sufficiently tested.

In this case, although Ms. Pawliw recanted her previous identification in testimony, there was meaningful opportunity to cross-examine her as a witness, and the trial judge noted that Ms. Pawliw’s statement included, without benefit of coaching, a very detailed description of Mr. Schroeder’s assailant, which matched Mr. Devine’s appearance almost exactly. Given the small-town setting, there was practically no chance that Mr. Devine was not the person referred to in Ms. Pawliw’s statement; hence, her recantation of her identification remained admissible on the basis of, to be frank, sheer obviousness.

The peculiar nature of the facts in R. v. Devine are such that it is unlikely to be cited in the future as a precedent for an expansion of the principled exception to the hearsay rule. At its highest, it suggests that K.G.B.‘s criteria for admitting prior inconsistent statements survive the more robust consideration for reliability introduced in Khelawaon.

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