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Criminal law Evidence Hearsay Admissibility of prior inconsistent statements Reliability Application of R. v. B. (K.G.), [1993] 1 S.C.R. 740 Whether the Court of Appeal erred in holding the trial judge responsible for the Crown’s decisions at trial not to call D.S.’s former counsel to testify and not to ask certain questions of D.S Whether D.S.’s assertion of solicitor client privilege made the opportunity to cross-examine him to a large extent illusory Whether the trial judge erred by failing to consider whether the circumstances surrounding the preparation and presentation of the agreed statement of facts provided adequate substitutes for customary court processes to meet the standard of threshold reliability.

The appellant, Yousanthan Youvarajah, and a young person, D.S., were charged with first degree murder and tried separately. The Crown accepted that the young person was the shooter and alleged that Youvarajah arranged for the shooting because the victim, an occasional drug dealer, had short changed him on two previous occasions. During his trial, the young person pleaded guilty to second degree murder, and his counsel and the Crown signed an agreed statement of facts which stipulated among other things that Youvarajah (a) gave the young person the handgun used in the shooting, (b) told him to shoot the victim and (c) demanded the handgun back shortly after the shooting. During the course of Youvarajah’s trial, the young person recanted portions of the agreed statement of facts. In response, the Crown sought to have the agreed statement of facts admitted as evidence capable of proving the truth of its contents. The application was dismissed on the basis that it did not meet the necessary threshold of reliability for the admission of hearsay evidence. Youvarajah’s request for a directed verdict of acquittal was subsequently granted. The Court of Appeal allowed the appeal and ordered a new trial.