K.G.B. Statement
A K.G.B. statement is a prior out-of-court statement that meets the criteria set out in R v B.(K.G.), 1993 (the "K.G.B." case) and can therefore be admitted at trial for the truth of its contents — even where the witness who made the statement now refuses to confirm it or has changed their evidence. The Supreme Court created the framework as an exception to the hearsay rule, applying the principled approach to particularly important Crown witness statements.
Mass Tsang's criminal lawyers handle K.G.B. challenges in domestic, sexual, and gang-related files.
The K.G.B. criteria
For a prior statement to be admitted as a K.G.B. statement, the Crown must show that: (1) the statement was made under oath, solemn affirmation, or solemn declaration after a warning about the consequences of making a false statement; (2) the statement was videotaped (or audio-recorded with verification of identity); and (3) the witness is available for cross-examination at trial. The trial judge must also be satisfied that the statement is reliable on the surrounding circumstances.
Why the framework was created
K.G.B. statements address a recurring problem in criminal prosecutions: witnesses who provide thorough, incriminating statements to police shortly after an incident, then later — often under family or community pressure, or as the case approaches trial — recant or claim memory loss. Without the K.G.B. framework, the original statement would be inadmissible hearsay and the Crown would be left with a recanting witness providing weak evidence. K.G.B. allows the original statement to come in for its truth.
Domestic and gang contexts
K.G.B. statements are particularly important in domestic-violence and gang-related prosecutions. Both contexts feature recurring witness recantation — domestic complainants who reconcile with the accused, gang witnesses who fear retaliation. The Crown's ability to use K.G.B. statements in these cases is often decisive.
Reliability and challenges
Even where the formal K.G.B. criteria are met, the trial judge must conduct a voir dire on reliability. The defence can challenge: the conditions under which the statement was given (suggestion, coercion, fatigue, intoxication); inconsistencies with other evidence; the witness's credibility at the time of the statement; and any indication that the original statement was false. Where reliability is in doubt, the statement is excluded.
Strategic implications
K.G.B. analysis is central to defence strategy in cases involving recanting witnesses. Where the Crown depends on a K.G.B. statement, defence challenges to the formal criteria or to reliability can end the case. Conversely, defence counsel must prepare for cross-examination both of the witness in their current state and of the original statement's contents.
Related glossary terms
