R v. David Edward Furey

On January 7, 2020, David Edward Fury entered the home of Paul and Chris Worrall on two occasions, culminating in physical confrontations between the parties. Later that night, Paul Worrall gave a statement to police. However, prior to trial, Mr. Worrall died of unrelated causes.

At trial, the prosecution tendered Mr. Worrall’s statement for the truth of its contents. The trial judge admitted the statement, ruling that the increased necessity reduced the need for reliability. Mr. Fury 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.

On appeal to the Court of Appeal of Newfoundland and Labrador, the majority held that the trial judge erred in finding that where necessity was high, less reliability was required, as the proposition was not supported in law. The majority ruled that increased necessity did not reduce the threshold reliability required to render an out-of-court statement admissible. As such, the statement ought not to have been admitted for the truth of its contents.

In dissent, Knickle J.A. found that the trial judge did not improperly relax the criteria set out in the principled approach to the hearsay rule. Knickle J.A. found the trial judge applied the skeptical and cautious approach required in assessing necessity and reliability, including considering the criteria in tandem, and with flexibility.

Her Majesty the Queen appealed, as of right, to the Supreme Court of Canada.