The Supreme Court of Canada released a decision today on the admissibility of an agreed statement of facts for the truth of its contents at trial. The accused and a youth, D.S., were charged separately in a homicide investigation. D.S. pleaded guilty to second degree murder. An agreed statement of facts was prepared, which he and his counsel signed in court. In the agreed statement of facts (“ASF”), D.S. implicated Youvarajah (“Y”) in the murder as well. At the trial of Y, D.S. partially recanted. D.S. continued to acknowledge he had been the shooter, but now said Y had not planned the murder and obtained the murder weapon, as was stated in the ASF. Instead, D.S. testified that the gun was his own and he shot the victim because of the way he was talking.
At trial, the Crown had been able to cross-examine the accused on his prior inconsistent statement to some extent, although that examination was somewhat curtailed by concerns relating to solicitor-client privilege between D.S. and his counsel at his trial. There is a discussion in the decision about whether a new trial ought to be ordered on the basis that Crown counsel’s cross-examination was improperly curtailed. That ground of appeal was not upheld; factually, it did not appear that the trial judge had ruled on this issue; rather, the Crown had moved along without being blocked by a ruling.
The more interesting issue before the SCC was whether the ASF could be admitted against the alleged accomplice for the truth of its contents. The Crown had sought that at the trial, and had been denied on the grounds that the ASF did not meet the tests set out in K.G.B.
The majority in the SCC held that the threshold reliability for admissibility was not met by the agreed statement of facts. This is the core of the majority’s reasoning on this point:
To the extent that the ASF incriminated D.S., was against his interests, and admitted his own culpability in court, these circumstances provide a compelling inference that those statements were in fact reliable in establishing D.S.’s criminal conduct. However, the underlying rationale for the admissibility of admissions as against the party making them falls away when they are sought to be used against a third party.  Here, the portions of the ASF that the Crown sought to rely upon at the appellant’s trial are statements that shifted responsibility for the murder from D.S., the shooter, to his co-accused, the appellant. They were elements that would support a plea to the lesser offence of second degree murder as well as support a more advantageous sentence.  Furthermore, the involvement of defence counsel provides no meaningful check on the danger of an accused acknowledging false allegations against a third party in order to obtain a favourable plea bargain. Counsel have an ethical duty to not knowingly mislead the court. However, it does not require them to verify or investigate the truth of information they present; and the duty is triggered only where counsel has information leading to the “irresistible conclusion” that something is false. See M. Proulx and D. Layton, Ethics and Canadian Criminal Law (2001), at pp. 40-47 and 460.  The suggestion that the solemnity of the occasion or the involvement of counsel increases the inherent trustworthiness of the statement does not resonate to the extent that it incriminates a third party — in this case a co-accused. Criminal law is generally and rightfully suspicious of allegations made by a person against an accomplice. It has long been recognized that evidence of one accomplice against another may be motivated by self-interest and that it is dangerous to rely on such evidence absent other evidence which tends to confirm it. The fact that such statements are contained in an ASF does not provide any reassurance of reliability. Indeed, statements by a co-accused or accomplice are recognized as inherently unreliable.
Here’s a link to the full text of this case: 2013 SCC 41.