In R. v. Hoffman, 2021 ONCA 781, November 5, 2021, the accused was convicted of the offence of manslaughter.  The evidence at the trial established that the victim (Mr. Kenyi) was killed after being swarmed by a number of people.  A Crown witness (Mr. Ojha) testified that the accused was not involved.  However, he had provided a statement to the police incriminating the accused.  This statement was admitted by the trial judge for the truth of its contents as a principled exception to the hearsay prohibition.

The accused appealed from conviction.  He argued that “the trial judge erred in failing to give a direction pursuant to the decision in R. v. W.(D.), [1991] 1 S.C.R 742, relating to exculpatory evidence given by key witness Peter Ojha (the “W.(D.) direction”). Second, he contends that the trial judge erred by misdirecting the jury on double hearsay that may have been contained in a ‘K.G.B. statement’ made by Peter Ojha that was admitted into evidence” (at paragraph 2).

The Ontario Court of Appeal concluded that the trial judge erred in both respects.  It ordered that a new trial be conducted.

W.(D.):

The Court of Appeal suggested that it “is settled that the W.(D.) principles apply to the evaluation of the credibility of exculpatory evidence given by any witness, including Crown witnesses…if a witness gives exculpatory evidence, a W.(D.) direction will be required even if that same witness also gives an inculpatory version of events” (at paragraphs 40 and 41).

The Court of Appeal concluded that “the trial judge erred in failing to direct jurors to apply the principles in W.(D.) when evaluating the testimony of Mr. Ojha. Without such direction, there can be no confidence that the jury understood the legal principles they were to apply. In my view, this non-direction amounted to a misdirection” (at paragraph 55).

Double Hearsay:

The Court of Appeal indicated that “[i]t is settled law that ‘a prior inconsistent statement

[such as Mr. Ojha’s K.G.B. statement]

can only be admitted for the truth of its contents under the principled approach if the evidence contained in the statement would be admissible through the witness’s testimony at trial’…Further, it is trite law that a witness cannot offer hearsay evidence in their testimony unless that hearsay evidence qualifies for admission pursuant to a hearsay exception. It follows that hearsay that is itself embedded in another wise admissible K.G.B. statement will not be admissible unless that embedded ‘double hearsay’ qualifies for admission pursuant to its own hearsay exception…Put simply, inadmissible double hearsay cannot ride into evidence on the coattails of admissible hearsay evidence” (at paragraph 58).

The Court of Appeal concluded that the trial judge erred in directing the jury “that in the case of Mr. Ojha they could use his previous statement ‘as evidence of what happened’” (at paragraph 68).