If a crucial witness changes their story or claims memory loss while testifying in court, the Crown can apply to use their original, video-recorded police statement as actual evidence against you. Known as a KGB Statement, the judge will allow this if the original interview was taken under oath, video-recorded, and the witness can be cross-examined at trial.
One of the most dramatic moments in any Canadian criminal trial occurs when a key witness takes the stand and completely changes their story. A witness who previously told the police everything might suddenly claim they lied, that they were intimidated, or that they simply “can’t remember” what happened. While this might seem like a sudden victory for the defence, Canadian federal law has a powerful tool to prevent witnesses from sabotaging a trial: the KGB Statement.
Named after the 1993 Supreme Court of Canada decision R. v. B. (K.G.), this legal rule creates an exception to the strict hearsay rules. Usually, out-of-court statements are not allowed to prove the truth of a matter. But if the police followed precise procedures when recording the original interview, the judge can accept that video as substantive evidence. Whether your trial is at the Supreme Court of British Columbia or a local courthouse in Nova Scotia, knowing how KGB statements work is crucial for your defence strategy.
Step-by-Step Process in Canada: Admitting a KGB Statement
When a witness “recants” (takes back their original statement), the Crown prosecutor cannot automatically play the police video to the jury. They must follow a strict legal process to prove the video is reliable.
Step 1: The Witness Recants on the Stand
📝 The process triggers when the witness is sworn in at the trial and gives testimony that completely contradicts what they told the police months or years earlier. The Crown prosecutor will ask the judge for permission to cross-examine their own witness regarding the previous statement.
Step 2: The Crown Requests a Voir Dire
A “Voir Dire” is a mini-trial held within the main trial, often without the jury present. The Crown asks the judge to admit the prior police statement for its truth (substantive evidence). The judge must now decide if the original police interview meets the strict criteria set out by the Supreme Court.
Step 3: Assessing the Reliability Requirements
For the video to be admitted, the police must have done their job perfectly during the original interview. The judge looks for three mandatory “KGB” factors: Oath (the witness swore on a Bible or solemnly affirmed to tell the truth), Warning (the police explicitly warned the witness that lying could result in perjury or mischief charges), and Video Record (the entire interview was perfectly recorded on video so the judge can see their body language).
Step 4: Cross-Examination of the Witness
Even if the video is perfect, it cannot be admitted unless your defence lawyer has the opportunity to aggressively cross-examine the witness right there in the courtroom. 🔍 Your lawyer will question them about why they lied to the police initially, whether the police pressured them, or if they were intoxicated when the video was recorded.
Step 5: The Judge’s Ruling
If the judge believes the original video is reliable and necessary for a fair trial, they will admit it. The jury (or the judge in a judge-alone trial) is then allowed to choose which version of the story to believe: the video recorded at the police station, or the live testimony given in the courtroom.
How Much Does a Trial Defence Cost in Canada?
Dealing with recanting witnesses and complex Voir Dires requires a law firm with deep trial experience. As of May 2026, standard criminal defence costs in CAD include:
- Bail Hearings & Initial Retainer: Expect to pay $3,000 to $10,000 CAD just to secure release and begin trial preparation.
- Voir Dire Preparation: Fighting a KGB application takes days of legal research and courtroom time, adding $5,000 to $15,000 CAD to your legal bill.
- Full Criminal Trial: For severe indictable offences (like assault or trafficking), full representation typically costs $20,000 to $60,000 CAD.
How Long Does the Process Take?
A KGB application will completely pause the normal flow of a trial. ⏱ The Voir Dire to determine if the video is admissible can take anywhere from 1 to 3 days of courtroom time. Overall, navigating a complex federal criminal trial in Canada from arrest to final verdict usually takes 12 to 24 months, depending on the backlog at your local courthouse.
Hearsay Rule vs. KGB Exception
| Feature | Standard Police Statement (Hearsay) | KGB Statement (Exception) |
|---|---|---|
| Format | Handwritten notes by a police officer. | Full, unedited video and audio recording. |
| Oath/Affirmation | Witness just talked casually. | Witness officially swore to tell the truth. |
| Legal Warning | No warning about perjury given. | Police explicitly warned about lying charges. |
| Use in Court | Only to challenge credibility (not for truth). | Can be used to actually convict the accused. |
Frequently Asked Questions (FAQ)
Why do police always record major witness interviews on video now?
Because of the KGB ruling. Canadian police forces know that witnesses in gang, domestic, or violent crime cases frequently get scared and change their stories at trial. Recording the interview on video with an oath guarantees the Crown can still use the evidence if the witness recants.
What if the police didn’t have a video camera?
If the statement was only audio-recorded or written down, it is extremely difficult—but not entirely impossible—for the Crown to get it admitted for its truth. The judge will heavily scrutinize the reliability, but video is strongly preferred under Canadian law.
Can the witness be charged for changing their story?
Yes. If a witness gives a sworn statement to the police and then tells a completely different story under oath in court, they have lied under oath at least once. They can be charged with perjury or obstructing justice, which are serious indictable offences.
How can my lawyer fight a KGB statement?
Your defence lawyer will attack the “circumstantial guarantee of reliability.” They might argue the police used oppressive tactics during the interview, that the witness was high on drugs at the time, or that the police failed to adequately explain the legal warning.
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