Case information
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40038
His Majesty the King v. David Edward Furey
(Newfoundland & Labrador) (Criminal) (As of Right)
Docket
Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.
| Date | Proceeding | Filed By (if applicable) |
|---|---|---|
| 2023-01-13 | Appeal closed | |
| 2022-12-16 | Transcript received, 43 pages | |
| 2022-12-08 | Formal judgment sent to the registrar of the court of appeal and all parties | |
| 2022-12-08 | Judgment on appeal and notice of deposit of judgment sent to all parties | |
| 2022-12-02 |
Judgment on the appeal rendered, Ka Côt Br Row Mar Kas Ob, The appeal from the judgment of the Court of Appeal of Newfoundland and Labrador, Number 202101H0019, 2021 NLCA 59, dated December 23, 2021, was heard on December 2, 2022, and the Court on that day delivered the following judgment orally: KARAKATSANIS J. — We are of the view that the appeal should be allowed. The trial judge did not err in admitting the hearsay evidence on the voir dire. However, we would emphasize that the necessity of receiving hearsay evidence is never so great that the principled approach’s requirement of threshold reliability can be sacrificed. Admitting unreliable hearsay evidence against an accused compromises trial fairness, risks wrongful convictions and undermines the integrity of the trial process (R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at paras. 47-49). This Court has recognized that necessity and reliability — making up the principled approach to hearsay evidence — “work in tandem”; in particular, “if the reliability of the evidence is sufficiently established, the necessity requirement can be relaxed” (R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520, at para. 72). Indeed, “[i]n the interest of seeking the truth, the very high reliability of the statement [can] rende[r] its substantive admission necessary” (Khelawon, at para. 86, citing R. v. U. (F.J.), [1995] 3 S.C.R. 764). However, this Court has never said that reliability becomes more flexible as necessity increases. While the indicia of reliability required to address specific hearsay concerns may vary with the circumstances of each case (Khelawon, at para. 78), threshold reliability must be established in every case. As this Court affirmed in R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, “the threshold reliability standard always remains high — the statement must be sufficiently reliable to overcome the specific hearsay dangers it presents” (para. 32, citing Khelawon, at para. 49). Indeed, where this Court has considered the out-of-court statements of deceased declarants, we have consistently insisted on “circumstantial guarantee[s] of trustworthiness” (R. v. Smith, [1992] 2 S.C.R. 915, at pp. 937-38), or “a sufficient substitute basis for testing the evidence” (Khelawon, at para. 105). Thus, in all cases, whatever may be the degree of necessity, such evidence must meet the requirement of threshold reliability in order to be admissible. That said, we do not read the trial judge’s reasons as based on a relaxed threshold of reliability. Rather, they show that she applied the reliability threshold described by this Court in Bradshaw, at para. 31. She remarked that the statement was video-recorded, “reasonably contemporaneous with the events and was given to police without hesitation” (voir dire reasons, at paras. 28-29, reproduced in A.R., vol. I, at p. 12). She also considered corroborative evidence, and determined that the explanations alternative to the statement’s truth “would seem unlikely” (para. 44). Based on these considerations, she concluded “that contemporaneous cross-examination, while preferable as in any case, would not likely add much to the process of determining the truth of what [the declarant] said in his statement” (para. 46). Thus, we are satisfied that the trial judge’s reasons, read as a whole, show that she properly applied the law relating to the admission of hearsay evidence, and did not relax the minimum threshold of reliability. We agree with the dissent in the Court of Appeal that the references in the final paragraphs of the trial judge’s reasons do not undermine her previous conclusion that threshold reliability was established. For these reasons, we allow the appeal, set aside the order of the Court of Appeal, and restore the respondent’s convictions. Allowed |
|
| 2022-12-02 |
Hearing of the appeal, 2022-12-02, Ka Côt Br Row Mar Kas Ob Judgment rendered |
|
| 2022-11-30 | Respondent's condensed book, (Book Form), (Printed version filed on 2022-12-01) | David Edward Furey |
| 2022-11-30 | Appellant's condensed book, (Book Form), (Printed version filed on 2022-12-01) | His Majesty the King |
| 2022-11-09 | Notice of appearance, Arnold Hussey, K.C will be appearing at the Court via Zoom and will present oral argument. | His Majesty the King |
| 2022-11-09 | Notice of appearance, (Letter Form), Jason A. Edwards will appear before the Court and will present oral argument., (Printed version due on 2022-11-17) | David Edward Furey |
| 2022-11-08 | Correspondence (sent by the Court) to, all parties; Letter of direction relating to upcoming hearing | |
| 2022-06-28 | Notice of hearing sent to parties | |
| 2022-06-28 |
Appeal hearing scheduled, 2022-12-02 Judgment rendered |
|
| 2022-06-14 | Letter advising the parties of tentative hearing date and filing deadlines (Leave granted), (sent to parties by email) | |
| 2022-05-17 | Notice of change of counsel, (Letter Form), Counsel Jason Edwards has assumed carriage of the file., (Printed version due on 2022-05-25) | David Edward Furey |
| 2022-05-16 | Certificate (on limitations to public access), (Letter Form), require: amended 23A, (Printed version filed on 2022-05-18) | David Edward Furey |
| 2022-05-16 | Respondent's book of authorities, (Book Form), Completed on: 2022-06-22, (Printed version filed on 2022-05-18) | David Edward Furey |
| 2022-05-16 | Respondent's record, (Book Form), require: 24B, Incomplete, (Electronic version filed on 2022-05-18) | David Edward Furey |
| 2022-05-16 | Respondent's factum, (Book Form), require: amended 23A, Incomplete, (Printed version due on 2022-05-24) | David Edward Furey |
| 2022-03-21 | Certificate of counsel (attesting to record), (Letter Form), 24A, (Printed version filed on 2022-03-22) | His Majesty the King |
| 2022-03-21 | Appellant's record, (Book Form), (2 volumes), Completed on: 2022-05-11, (Printed version filed on 2022-03-22) | His Majesty the King |
| 2022-03-21 | Appellant's factum, (Book Form), Completed on: 2022-05-11, (Printed version filed on 2022-03-22) | His Majesty the King |
| 2022-02-11 | Letter acknowledging receipt of a notice of appeal, FILE OPENED 2022-02-11 | |
| 2022-02-10 | Order on motion to extend time to serve and/or file notice of appeal, by MARTIN J. | |
| 2022-02-10 |
Decision on motion to extend time to serve and/or file notice of appeal, Mar, UPON APPLICATION by the appellant for an order extending the time to serve and file its notice of appeal as of right to January 26, 2022; AND THE MATERIAL FILED having been read; IT IS HEREBY ORDERED THAT: The motion is granted. Granted |
|
| 2022-02-10 | Submission of motion to extend time to serve and/or file notice of appeal submitted, Mar | |
| 2022-02-02 | General proceeding, A FILE NUMBER HAS BEEN ASSIGNED AT THIS TIME FOR THE SOLE PURPOSE OF PREPARING AN ORDER RELATING TO THE MOTION FILED BY HER MAJESTY THE QUEEN. | His Majesty the King |
| 2022-01-27 | Motion to extend the time to serve and/or file the notice of appeal, (Letter Form), Missing: Filing Fee (rec' 02/15/22), Completed on: 2022-02-15, (Printed version filed on 2022-01-27) | His Majesty the King |
| 2022-01-26 | Certificate (on limitations to public access) | His Majesty the King |
| 2022-01-26 |
Notice of appeal, (Book Form), Required: -Trial Court Order -Signed Trial Court Reasons for judgment -Appeal Court Reasons for judgment Amended Notice of Appeal rec'd 2022-01-27, Incomplete, (Printed version filed on 2022-01-26) |
His Majesty the King |
Parties
Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.
Main parties
| Name | Role | Status |
|---|---|---|
| His Majesty the King | Appellant | Active |
v.
| Name | Role | Status |
|---|---|---|
| Furey, David Edward | Respondent | Active |
Counsel
Party: His Majesty the King
Counsel
Crown Attorney's Office, Dept of Justice and Public Safety
204-97 Manitoba Drive
Clarenville, Newfoundland & Labrador
A5A 1K3
Telephone: (709) 466-7463
FAX: (709) 466-1378
Email: ArnoldHussey@gov.nl.ca
Agent
160 Elgin Street
Suite 2600
Ottawa, Ontario
K1P 1C3
Telephone: (613) 786-8695
FAX: (613) 788-3509
Email: lynne.watt@gowlingwlg.com
Party: Furey, David Edward
Counsel
Suite 200
251 Empire Avenue
St. John's, Newfoundland & Labrador
A1C 3H9
Telephone: (709) 552-7691
FAX: (709) 753-6226
Email: jasonedwards@legalaid.nl.ca
Summary
Keywords
Criminal law — Evidence — Admissibility — Hearsay — Videotaped out of court statement given by complainant who died before trial — Whether the majority of the Newfoundland and Labrador Court of Appeal erred in law in allowing the appeal, setting aside the convictions and ordering a new trial because the trial judge failed to apply the correct legal principles in assessing the “threshold” admissibility of an out of court statement.
Summary
Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.
The respondent, David Edward Furey, was convicted of breaking and entering into a dwelling, assault with a weapon, assault causing bodily harm, possession of a knife for a purpose dangerous to the public peace, and breach of an undertaking. At trial, the judge admitted, for the truth of its contents, a videotaped out of court statement given by one of the complainants, who subsequently died of unrelated causes. The statement was given to the police soon after the altercations.
A majority of the Court of Appeal allowed Mr. Furey’s appeal from convictions, set aside the decision of the trial judge, including the voir dire decision regarding the admissibility of the complainant’s out-of-court statement, and ordered a new trial. The majority concluded that the trial judge applied an erroneous statement of the law — that where there is greater necessity, less reliability is acceptable. As a result of her reliance on this statement, the trial judge erred in admitting the complainant’s out of court statement for the truth of its contents: she permitted the admissibility of the hearsay evidence without requiring that the requisite degree of reliability be established. In dissent, Knickle J.A. would have dismissed the appeal. In her view, the trial judge committed no error in her application of the principled approach to the hearsay evidence, as she engaged in the skeptical and cautious analysis that was required before admitting the statement, including that the two criteria of necessity and reliability must be assessed in tandem and with flexibility.
Lower court rulings
Provincial Court of Newfoundland and Labrador
0120PA00574, 2020 NLPC 0120PA00574
Convictions for breaking and entering into a dwelling, assault with a weapon, assault causing bodily harm, possession of a knife for a purpose dangerous to the public peace and breach of an undertaking entered
Court of Appeal of Newfoundland and Labrador
2021 NLCA 59, 202101H0019
Appeal allowed, convictions set aside and new trial ordered
Memorandums of argument on application for leave to appeal
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Related links
Factums on appeal
The factums of the appellant, the respondent and the intervener will be posted here at least 2 weeks before the hearing unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of factums by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a factum or want permission to use a factum, please contact the author of the factum directly. Their contact information appears on the first page of each factum.
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