The concept of recanting witnesses is very broad, encompassing all those who make statements to police and others and then resile from those statements. It is impossible to list all examples of recanting witness situations, as they are as varied as there are witnesses, but there are some that occur more often than others.

One common example is in files where an accused is alleged to have assaulted their spouse, and the complainant wants to retract or seriously modify statements, which were made in a heated marital situation. A common problem often arises when a spouse attempts to contact you and tell you they want their partner home and they didn’t mean what they told the police and they were just mad, drunk or confused etc. A prudent answer is to simply inform them that you should not talk to them and they should seek independent assistance or call the prosecutor or victim services. It is not untoward to give them the name and number of another counsel who can advise them. I like to do this with a witness present so that the complainant cannot later turn on me and suggest I tried to influence them. Always be mindful that interviewing any opposing witness is a minefield. While there is no property in a witness, it is preferable to have someone else do the interview or at least have another witness present for the interview.

Another example is where a complainant recants and the Crown decides to only call independent witnesses. What should you do? You should ask for disclosure of any and all statements made by the witness, Crown notes of interviews etc. You may decide to call the witness as part of your own defence, but of course there are obvious dangers, most probably that the Crown would get to cross-examine someone who was originally their witness.

What are described above are more simply prior inconsistent statement situations. More troubling are the complex situations that raise issues of “principled exceptions” of the hearsay rule, Canada Evidence Act s. 9 applications, and the increasing reliance on the notorious sworn KGB statement.

What is Hearsay?
In R. v. Khelawon, the Supreme Court of Canada restated much of what is now well settled law, as to the definition of hearsay:

1. A hearsay statement is an out-of-court statement adduced to prove the truth of its contents, in the absence of a contemporaneous opportunity to cross-examine the declarant.

2. Hearsay evidence is presumptively inadmissible.

3. It is inadmissible because generally it is not possible to test the reliability of a hearsay statement.

4. A hearsay statement may be admitted for its truth if it is shown to be both necessary and reliable.

5. Its reliability must be sufficient to overcome the dangers arising from the difficulties of testing it.

6. The onus of establishing, on a balance of probability, both necessity and reliability is on the person who seeks to adduce the evidence.

7. The overarching principle is trial fairness, which embraces not only the rights of the accused, but broader societal concerns including truth as the goal of the trial process.

8. There are two main ways of establishing reliability. The first is that because of the circumstances in which the statement was made, there is no real concern about the statement’s truth. This approach is embodied in traditional exceptions to the rule against hearsay such as dying declarations, spontaneous utterances, and statements against pecuniary interest.

9. The second way of establishing reliability is because the statement’s truth and accuracy can be sufficiently tested. The optimal means of testing reliability is to have the declarant state the evidence in court, under oath, and subject to contemporaneous cross-examination. In some cases where the optimal means are unavailable, it will still be possible to sufficiently test the truth and accuracy of the evidence because of the presence of adequate substitutes, including (a) an oath or its equivalent; (b) an opportunity to observe the statement being made (e.g. a video); and (c) the opportunity to cross-examine the declarant on his or her earlier statement.

10. Trial fairness requires consideration of factors beyond necessity and reliability. Even if those two factors are met, the trial judge has discretion to exclude hearsay evidence where its probative value is outweighed by its prejudicial effect.

11. The trial judge must also be satisfied on a balance of probabilities that the statement was not the product of coercion of any form, whether involving threats, promises, excessively leading questions by the investigator or other person in a position of authority, or other forms of investigatory misconduct.

12. There is a distinction between threshold reliability (i.e. reliability sufficient to be admissible), which is a legal question for the judge; and ultimate reliability, which is a question for the trier of fact.
Our office was involved in defending a notorious case that involved recanting witnesses, a witness whose memory had been compromised after the giving of a statement, but prior to trial, videotaped statements that had been sworn under oath prior to trial (KGB statements) and hostile witnesses (C.E.A. s. 9 applications). I have described that case below as a case study regarding recanting witnesses and the hearsay issues that become involved in these difficult situations.

The charges in R. v. Sharif arose from a shooting incident outside a nightclub, the Purple Onion, in the Gastown area of Vancouver. The accused, Mr. Sharif was one of an Indo-Canadian group of males that became involved in an altercation with an Asian group of males. One of the Indo-Canadian group landed on the ground, under attack by members of the Asian group. Rachel Davies and her friend Sebastian Templer intervened, seeking to protect the downed man. An Indo-Canadian male brandished a gun and fired into the crowd. Ms. Davies was shot in the head. Mr. Templer was shot in the wrist and shoulder. A member of the Asian group, Mr. Hui, was also shot in the head. Ms. Davies and Mr. Hui died of their gunshot wounds. As well, two other members of the Asian group, Mr. Flojo and Mr. Choi, were shot and injured. Mr. Hussain, a member of the Indo-Canadian group, fell to the ground during the altercation and sustained a gunshot wound to his shoulder. The Indo-Canadian males fled, pursued by Mr. Mathews. The Indo-Canadian male with the gun shot at him, grazing Mr. Mathews’ forehead.

In presenting its case, the Crown relied upon statements of six witnesses: Mr. Mathews, Mr. Hussain, Mr. U., Mr. K., Ms. K. and Mr. H. The first four persons were present at the time shots were fired. Mr. Mathews and Mr. Hussain respectively named the accused as the shooter and the man with the gun as people fell, in their testimony. Mr. U. and Mr. K. made statements to police officers under oath that were videotaped, KGB statements. Ms. K. testified at trial that Sharif told her he was the shooter. Mr. H., a jailhouse informant who was incarcerated with Sharif prior to his trial, made a KGB statement implicating him in a scheme to intimidate, kidnap and murder witnesses and saying Sharif told him he had fired shots.

At trial, Mr. U. recanted his KGB statement, testifying he did not know who the shooter was and did not see anybody with a gun. Likewise, Mr. K. recanted his KGB statement, testifying he did not see Sharif with a gun. Mr. H. did not testify at trial because he refused to take the oath.

The Crown, faced with these circumstances, applied to admit the sworn statements of each of these three witnesses for the truth of their contents. The trial judge allowed the applications and the KGB statements of these three witnesses were admitted for the truth of their contents. The trial judge cautioned the jury as to these statements in his instructions to the jury.

Regarding the use of extrinsic evidence in determining threshold reliability for purposes of admitting a prior statement for their truth at the trial, the judge was referred to R. v. Starr, then the leading authority on threshold reliability in the principled approach to admission of hearsay evidence. Since that trial, the Supreme Court of Canada, in R. v. Khelawon, restated that analysis. Sharif’s conviction was appealed and a central issue was the effect of Khelawon upon the judge’s ruling in respect to the U., K. and H. statements.

Madame Justice Saunders decided, in effect, that if the Khelawon criteria were applied to the facts as presented at trial, the judge could have come to the same conclusion as to admissibility with respect to witness U. Similarly, with respect to witness K, she held that there was more than adequate evidence to satisfy the Khelawon criteria. Regarding the evidence of witness H who refused to testify, she concluded at para 66 that “nor is there merit to an attack upon the judge’s discussion of residual discretion in respect to H’s statement. The judge’s reasons are thorough, and supportable. As a discretionary decision, the decision to admit the evidence is entitled to deference.” Accordingly the appeal was dismissed.

The Sharif case is a good example of the challenges that both Defence Counsel and Crown Counsel face, when dealing with recanting, resistant and reluctant witnesses. At first blush, it may appear advantageous to the Defence when a witness goes sideways for the Crown, however, the case law gives generous support for the Crown to make efforts to rehabilitate their witness. This was clearly evident to our office, as we fought hard to defend Mr. Sharif without the benefit of being able to truly cross-examine the key witnesses. If you or someone you know is dealing with a recanting or hostile witness, or hearsay issues related to statements that have been given, please contact Terry La Liberté, Q.C. or Kasandra Cronin, Q.C.. We have a vast experience of knowledge about these issues, and we are here to help.

-Presentation by Terry La Liberté Q.C. at the Trial Lawyers Association of B.C. Criminal Law Conference.