Without hint of an attack on the police investigation, the court declined to rule in a voir dire on the admissibility of investigative hearsay evidence.
By: Dallas Mack
R. v. Mildenberger, 2015 CarswellSask 606, 2015 SKQB 299,  S.J. No. 519, 125 W.C.B. (2d) 271 (Sask. Q.B.)
2.2 — R. v. Mildenberger, 2015 CarswellSask 606 (Sask. Q.B.)
Jaycee Mildenberger was charged with first-degree murder in relation to the killing of Gwenda Gregory. The Crown brought an application to lead, as part of its case in chief, some investigative hearsay evidence. The Crown sought to lead evidence that the police had offered Mildenberger an opportunity to take a polygraph test and he declined; there was also evidence that Mildenberger lied to his friends, telling them that the police withdrew that offer and related evidence from the police that they had not withdrawn the offer.
The Crown sought to lead this evidence to address the anticipated allegation by defence that there was a third party suspect and that the police investigation was inadequate.
The court held a voir dire to consider the admissibility of this evidence. During the voir dire defence took the following position:
Defence counsel also advised the court that the accused was not raising the defence that the police conducted an inadequate or poor investigation. Defence counsel told the court that in every case he asks questions about the nature or adequacy of the investigation undertaken by police. Counsel advised that while defence likely intended to ask such general questions, the accused was not raising inadequate police investigation as a defence. Defence counsel did qualify that statement to some extent in that defence counsel indicated that if evidence was presented from the Crown witnesses during the course of their examination-in-chief which alerted the defence that the accused should be advancing a defence of inadequate investigation, defence counsel may raise the defence. Defence counsel indicated that they were unable to firmly rule out such a defence as they had yet to hear the evidence of Crown witnesses.[Para 9].
In addressing the motion the court began by noting that where the “defence intends to allege that the police investigation was inadequate the trial judge should hold a voir dire to determine whether to admit investigative hearsay evidence” [para. 14]. In this context the court recognized that where an accused raises the defence of inadequate investigation they run the risk of facing evidence from the Crown that is “otherwise inadmissible” about the investigation, officer’s opinions and the accused’s antecedents [para. 14]: see R. v. Lane, 2008 CarswellOnt 7638 (Ont. C.A.) at paras. 30-50; R. v. Pritchard, 2002 CarswellBC 3181 (B.C. S.C.).
With that review in hand, the court held that given defence’s position that at this point it did not intend to raise the adequacy of the investigation as a defence, the ruling on the admissibility of the evidence the Crown sought to tender would be premature. The court added however:
[I]n the event during cross-examination defence counsel seeks to ask a witness questions going to this issue, I direct that they advise me in the absence of the jury of their intention to do so. This will permit the Crown and defence to address the issue. The Crown can advise if they seek to lead otherwise inadmissible evidence relevant to the adequacy of the investigation. If so, it will likely be necessary to hold a voir dire. Through the evidence on the voir dire the court can assess whether the probative value of the evidence sought to be admitted outweighs the prejudicial effect. It will also give the defence an opportunity to assess the risks of pursuing that kind of defence. [Para. 16].
Mildenberger offers an interesting practical view of this issue. Noting the need for a voir dire the court highlights that defence will get a preview of the evidence and then be able to “assess the risks” associated with pursuing such a defence.