Gardipy decided he was going to rob Justin Scott. He went with three other men to Scott’s house for this purpose. One of those men was his cousin, Sean Gardipy. The men broke into Scott’s home and threatened and beat him in an effort to find his “stash” and rob him. Scott ultimately made an escape and the men fled. They were arrested after a brief investigation.
A bail hearing was held and only Gardipy was released. While Sean was being transported from the court back to detention the officer noted that Sean was visibly upset. The officer asked him what was going on and Sean indicated he was upset because Gardipy lied about his involvement. The officer asked Sean if he would be willing to give a statement; he indicated he would – and he did. When he was subpoenaed to testify at trial he refused to testify. The Crown brought an application to tender his videotaped statement. It succeeded. Gardipy was convicted. He appealed.
On appeal Gardipy argued that the trial judge erred in assessing the reliability of the statement. The Court of Appeal dismissed the appeal. In doing so the court approved of the following favourable reliability factors cited by the trial judge.
First, the statement was given at Sean’s “own behest”. The court noted that during the drive to detention it was Sean that volunteered that Gardipy had lied [para 31].
Second, Sean was advised of his right to counsel and told he was not obliged to say anything. Sean indicated he understood and declined to speak to a lawyer [para 32].
Third, while the statement was not under oath, Sean indicated at the end of it that he was telling the truth [para 33].
Fourth, Sean made no effort to exculpate himself; he admitted his involvement with the others in the crime. The court noted that a statement against penal interest is an exception to the hearsay rule and while it did not strictly apply in the present case the principle did – it is unlikely a person would lie and implicate themselves [para 34].
Fifth, Sean’s statement was substantially confirmed by the eye witness testimony of Scott [para 35].
As for the arguments of Gardipy, the court offered the following.
First, while the statement was not under oath, this is not determinative; “it is not unusual for an unsworn hearsay statement given in the absence of a perjury warning to be admitted into evidence” [para 36].
Second, the alleged motive to lie – although not really made out in the present case – was again only a factor to consider and not determinative [paras 38-39].
Third, the inability to cross-examine Sean, again, is a factor, however, evidence may be admitted so long as “there is an adequate substitute basis for testing it or if its contents are sufficiently trustworthy”. In the present case, the other factors supported admission despite the inability to cross-examine [para 40].