Case Summary: R v Weldekidan

A Vallance - law student

Feb 27, 2020

4 min read

Updated: 14 hours ago

Author: A Vallance

The case of R v Weldekidan deals with a number of important issues related to criminal law, for example the admissibility of victim statements procured during a vulnerable state. The trial judge refused to allow the evidence because she believed that the reliability of the statements was suspect, mainly due to the fact that the statements had been procured in hospital, while the victims were highly medicated. The appellate judge was tasked with determining whether, or not the trial judge erred in dismissing the statements of the victims. My goal is to summarize the case, and the associated legal principles in an easily digestible way.

The facts of the case are as follows, the three victims had been drinking at a bar in downtown Winnipeg, when one of the victims got into an argument with the accused. The victims, and the accused then met up later in the night at a house party. This is where things escalated, the accused lured one of the victims outside, and shot him in the abdomen. After shooting the first victim, the accused proceeded to find, and shoot each of the other victims. The accused also attempted to shoot a fourth individual, who was attempting to help the first victim. The statements that were in question in this case were recorded on video in hospital shortly after the incident. They appeared to be coherent in the video recording, but at trial they claimed to have forgotten what happened. They also claimed to have forgotten giving the video statements at all.

The main issue, as I mentioned before is whether, or not the statements given by the three victims were admissible evidence. This depends on whether, or not the crown could prove the evidence met the standards of threshold reliability, assessed on the balance of probabilities.[1]Threshold reliability can be established using procedural, or substantive reliability. Substantive reliability as described by Justice Karakatsanis can be established when “sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy.” Justice Karakatsanis also comments on procedural reliability which can be established when “there are adequate substitutes for testing truth and accuracy.”[2] The Crown claimed that the evidence should have been accepted based on procedural reliability.

The law is elaborated on in a number of cases including the previously cited Bradshaw case, and KGB. In KGB Judge Lamer determined that threshold reliability could be proved using “circumstantial guarantees of reliability”, in situations where the statement was made under oath, the statement had been videotaped like it had been in this case, and where the opposing party has a full opportunity for cross examination.[3] The court looks at a variety of cases, none of them really fit perfectly with the fact pattern in this case, but what they do point out is that you don’t necessarily need to establish the existence of all three elements outlined in KGB.

In my view, and more importantly the appellate court’s view, the fact that they claimed they could not remember what had happened when they appeared at trial shouldn’t be considered relevant. This is outlined in the Devine case where a witness statement was said to meet the requisite threshold reliability, even though at trial the witness couldn’t remember much. I agree with the rule of law used in the Devine case, human memory can be a fickle instrument, as time goes on our memories of an event begin to fade away. There is also a possibility that once imminent death had been avoided, the victims may have begun fearing reprisal for offering up information. The appellate judge determined that the trial judge had erred in applying the law related to procedural reliability, she looked to assess whether the statements were trustworthy, and not whether they could be found to be reliable. In doing this the trial judge took on a responsibility reserved for the jury. The court also found issue with the trial judge’s application of the third aspect of the KGB test, the trial judge assumed that because the victims claimed to have forgotten what happened during the attack, that the cross-examiner could not procure relevant information related to the test of reliability.[4]

In conclusion, the appellate court determined that the trial judge had made an error when she refused to accept the recorded victim statements. As mentioned before the trial judge overstepped her bounds by assessing ultimate reliability, instead of procedural reliability. This means she determined the statements to be unreliable, instead of looking at whether they could potentially be found to be truth by the jury. Then she was found to give an overly restrictive definition of the third aspect of the KGB, which dealt with whether the opposing party had a full opportunity to cross-examine the witness. This led the case in a certain way, and the accused was found not guilty on all charges. The appellate judge determined that the case would have likely gone another way if the video statements had been heard. I agree with this assertation, three statements pointing towards the accused’s guilt could have made a great degree of difference.The appellate judge ordered a new trial, which hasn’t been carried out yet.

This case does a fantastic job of outlining the current law on threshold of reliability, particularly procedural reliability. It also provides us an example of how the current law on the issue is applied by the courts. Hearsay evidence such as those present in witness testimony is assumed to be inadmissible unless it can be proven that it meets the requirements of threshold reliability which comes in two forms procedural, and substantive. For procedural reliability you need to prove “sufficient circumstantial guarantees of reliability” found in instances where the statement is made under oath, the statement is made on video, and when the statement can be sufficiently, and fully cross examined by the opposing party.[5] If the evidence meets the standard of threshold reliability, the ultimate reliability which looks at whether the statements are true is determined by the trier of fact, in this case the jury.