The Supreme Court of Canada has made it harder for prosecutors to use hearsay in criminal trials in a case in which a video re-enactment – led by an admitted killer – was used to convict another man of killing two people.
The man in the video re-enactment, Roy Thielen, had initially been charged with two counts of first-degree murder. He pleaded guilty to second-degree murder, but refused to testify under oath in court in the trial of the other man accused in the case, leaving the prosecutors to use the video, but giving the defence no opportunity to cross-examine him.
More than a quarter-century ago, the Supreme Court ushered in what legal observers call a revolution in the use of hearsay – statements made outside court – as evidence in criminal trials in a 1990 case in which a three-year-old girl said a doctor molested her. Because semen was found on her clothing, and because no other man had been in the room, the court allowed the girl's statement outside of court to be used as evidence. Ever since, the court has been called on to define the circumstances in which hearsay is permissible.
In the latest case, the court has raised the bar, stressing the importance of evidence heard in court rather than hearsay from outside the court.
"The truth-seeking process of a trial is predicated on the presentation of evidence in court," Justice Andromache Karakatsanis wrote for the majority in a 5-2 ruling in the case of Robert Bradshaw of British Columbia, who was convicted in 2012 on two charges of first-degree murder. The effect is to give the prosecution another opportunity to put Mr. Bradshaw on trial, but without the video.
The court's decision does not mean hearsay evidence can never be used, but it means that – especially in cases where a witness might have a motive to lie – prosecutors will need to find enough supporting evidence to show the hearsay is probably accurate and honest.
"It's important to fair trials that people are tried on evidence heard in court, rather than manufactured out of court," Louis Strezos of Toronto, who represented the Criminal Lawyers Association, which intervened in the case, said in an interview.
Richard Fowler, a Vancouver lawyer who represented Mr. Bradshaw, said his client testified in court and was cross-examined, "but the person who gave evidence against him didn't testify and was never cross-examined. I think most people would say, 'Hmm, there's something fundamentally wrong about that.'"
In a strongly worded dissent, Justice Michael Moldaver, a leader on the court in criminal law, wrote that the majority had replaced the court's traditional view – that hearsay could be used when necessary, and when it meets a basic level of reliability – with a "restrictive test." He said there was enough supporting evidence to show the video re-enactment met an acceptable standard of reliability.
Laura Lamoureux and Marc Bontkes were shot dead in Langley, B.C., five days apart in March, 2009. Mr. Thielen was a suspect, and police lured him into a "Mr. Big" operation in which they set up a fictitious criminal organization and sought a confession. He did tell an undercover officer a local drug dealer hired him to carry out the killings; but later he told a different officer Mr. Bradshaw shot Mr. Bontkes.
Seventeen months after the killings, Mr. Thielen re-enacted the crimes for police, on video. He was not under oath, and he was not warned about the consequences of not telling the truth. He also described Mr. Bradshaw as having driven him in search of Ms. Lamoureux and pointing her out to him before he, Mr. Thielen, killed her.
The trial judge allowed the jury to see the videotape, but the B.C. Court of Appeal ruled 3-0 that the judge was wrong to do so, and ordered a new trial for Mr. Bradshaw. The Crown appealed to the Supreme Court.