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| John L. Hill |
She stated he was armed with a gun and allegedly threatened to shoot her and steal her belongings. Police found Cardinal in the building with a backpack containing methamphetamine, ammunition and the complainant’s iPad. Nearby, they also found an airsoft pistol and a sawed-off rifle with the appellant’s DNA. JH later gave an audio-recorded statement to police, claiming that Cardinal had threatened her with a black handgun and was in possession of multiple firearms.
Cardinal was charged and later convicted in provincial court of multiple offences, including assault with a weapon, use of an imitation firearm, possession of prohibited firearms, breaches of conditions and possession of methamphetamine.
In convicting Cardinal, the trial judge accepted the evidence of JH, who during the 911 call stated that Cardinal was unknown to her. In her audio statement to police, she said she had met Cardinal two days earlier on Facebook, that he had visited her once before and that she knew of his family background.
In appealing his conviction, Cardinal argued that the complainant’s audio-recorded statement was inadmissible because it
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It was the Crown’s position that JH’s statement met the reliability threshold, highlighting its consistency, the complainant’s emotional state, and corroborative evidence such as Cardinal’s DNA on the rifle and his possession of ammunition.
The Alberta Court of Appeal, in R. v. Cardinal, 2025 ABCA 128, began by determining that the standard of review for evaluating the trial judge’s decision to admit the evidence was correctness. If the trial judge addressed the relevant factors for reliability, did not materially misapprehend related evidence and reasonably assessed the weight to be assigned to each factor, the judge’s weighing of those factors was entitled to deference (R. v. Charles, 2024 SCC 29; R. v. Lawrence, 2020 ABCA 268; R. v. Youvarajah, 2013 SCC 41; and R. v. Couture, 2007 SCC 28).
The appellate court adopted the Supreme Court’s test in R. v. Bradshaw, 2017 SCC 35 to assess whether the evidence was necessary and sufficiently reliable to override the presumption that hearsay is inadmissible. The court concluded that the trial judge erred in admitting the complainant’s audio-recorded statement owing to deficiencies in both procedural and substantive reliability.
The court found that JH’s statement lacked adequate procedural protections. It was not given under oath or caution, and the police did not cross-examine or challenge her account. The trial judge incorrectly relied on the presence of police officers and the complainant’s emotional condition as substitutes for cross-examination.
Furthermore, the trial judge failed to consider plausible alternative explanations for the complainant’s statement, such as her potential motive to fabricate the allegations to “set up” the appellant. The corroborative evidence, including the appellant’s DNA on the rifle and his possession of ammunition, did not eliminate these alternative explanations. Additionally, inconsistencies in the complainant’s account and her questionable character further weaken the reliability of her statement. The trial judge improperly combined weak procedural and substantive reliability to admit the statement, contrary to the caution expressed in the Bradshaw case.
The court determined that JH’s statement lacked sufficient reliability and should not have been admitted. As a result, the convictions for assault with a weapon and use of an imitation firearm, which heavily depended on that statement, were overturned. However, the convictions for possession of methamphetamine and breaches of curfew remained unaffected by the evidentiary issues and were upheld.
The #MeToo movement, launched in 2017, marked a crucial shift in how society discusses sexual violence. It motivated many women to come forward, exposed systemic abuse and urged institutions to reflect on their role in enabling misconduct. Although challenges remain, #MeToo represented a notable cultural change towards accountability, survivor empowerment and greater public awareness of the prevalence of sexual violence.
However, it appears courts are becoming more cautious. The Cardinal case might illustrate the approach courts are adopting when an allegation of sexual violence is made. While it is still true that a person accusing someone of sexual assault has the right to be heard, they do not automatically have the right to be believed.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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