Is Hearsay Ever Allowable In a Criminal Case?

Subject to the Test For Necessity and Reliability, Hearsay Testimony May Be Permitted As Evidence Within a Criminal Trial. The Rules Apply to Both the Prosecution and the Accused Person.

Understanding the Limited Acceptance of Hearsay Evidence Including Required Review of Necessity and Reliability

Hearsay Testimony In Criminal Matters Involves a Review of Necessity and Reliability of Such Evidence Generally, hearsay testimony, meaning testimony given as evidence by a witness who lacks first-hand knowledge of the information, is forbidden; however, where it can be shown that the hearsay testimony is necessary because of the unavailability of testimony from the direct witness as well as reliable, the hearsay testimony may be permitted.

The Law

The admissibility of hearsay testimony as evidence from an indirect witness within a criminal matter is dependent upon whether the court views the hearsay as both necessary as well as reliable.  Determining the element of necessity requires review of why the directly observing witness is unavailable to testify.  Determining the element of reliability requires review of whether any other evidence and support and corroborate the hearsay evidence.  Regarding hearsay testimony, the Supreme Court has said:

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5.        Rule Against Hearsay

5.1      General Exclusionary Rule

34   The basic rule of evidence is that all relevant evidence is admissible.  There are a number of exceptions to this basic rule.  One of the main exceptions is the rule against hearsay:  absent an exception, hearsay evidence is not admissible.  Hearsay evidence is not excluded because it is irrelevant — there is no need for a special rule to exclude irrelevant evidence.  Rather, as we shall see, it is the difficulty of testing hearsay evidence that underlies the exclusionary rule and, generally, the alleviation of this difficulty that forms the basis of the exceptions to the rule.  Although hearsay evidence includes communications expressed by conduct, I will generally refer to hearsay statements only.

5.2      Definition of Hearsay

35   At the outset, it is important to determine what is and what is not hearsay.  The difficulties in defining hearsay encountered by courts and learned authors have been canvassed before and need not be repeated here:  see R. v. Abbey, 1982 CanLII 25 (SCC), [1982] 2 S.C.R. 24, at pp. 40-41, per Dickson J.  It is sufficient to note, as this Court did in Starr, at para. 159, that the more recent definitions of hearsay are focussed on the central concern underlying the hearsay rule:  the difficulty of testing the reliability of the declarant’s assertion.  See, for example, R. v. O’Brien, 1977 CanLII 168 (SCC), [1978] 1 S.C.R. 591, at pp. 593‑94.  Our adversary system puts a premium on the calling of witnesses, who testify under oath or solemn affirmation, whose demeanour can be observed by the trier of fact, and whose testimony can be tested by cross-examination.  We regard this process as the optimal way of testing testimonial evidence.  Because hearsay evidence comes in a different form, it raises particular concerns.  The general exclusionary rule is a recognition of the difficulty for a trier of fact to assess what weight, if any, is to be given to a statement made by a person who has not been seen or heard, and who has not been subject to the test of cross-examination.  The fear is that untested hearsay evidence may be afforded more weight than it deserves.  The essential defining features of hearsay are therefore the following:  (1) the fact that the statement is adduced to prove the truth of its contents and (2) the absence of a contemporaneous opportunity to cross-examine the declarant.  I will deal with each defining feature in turn.

5.2.1   Statements Adduced for Their Truth

36   The purpose for which the out-of-court statement is tendered matters in defining what constitutes hearsay because it is only when the evidence is tendered to prove the truth of its contents that the need to test its reliability arises.  Consider the following example.  At an accused’s trial on a charge for impaired driving, a police officer testifies that he stopped the accused’s car because he received information from an unidentified caller that the car was driven by a person who had just left a local tavern in a “very drunk” condition.  If the statement about the inebriated condition of the driver is introduced for the sole purpose of establishing the police officer’s grounds for stopping the vehicle, it does not matter whether the unidentified caller’s statement was accurate, exaggerated, or even false.  Even if the statement is totally unfounded, that fact does not take away from the officer’s explanation of his actions.  If, on the other hand, the statement is tendered as proof that the accused was in fact impaired, the trier of fact’s inability to test the reliability of the statement raises real concerns. Hence, only in the latter circumstance is the evidence about the caller’s statement defined as hearsay and subject to the general exclusionary rule.

5.2.2   Absence of Contemporaneous Cross-Examination

37   The previous example, namely where the witness tells the court what A told him, is the more obvious form of hearsay evidence.  A is not before the court to be seen, heard and cross-examined.  However, the traditional law of hearsay also extends to out-of-court statements made by the witness who does testify in court when that out-of-court statement is tendered to prove the truth of its contents.  This extended definition of hearsay has been adopted in Canada:  R. v. B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740, at pp. 763-64; Starr, at para. 158.  It is important to understand the rationale for treating a witness’s out-of-court statements as hearsay.

38   When the witness repeats or adopts an earlier out-of-court statement, in court, under oath or solemn affirmation, of course no hearsay issue arises.  The statement itself is not evidence, the testimony is the evidence and it can be tested in the usual way by observing the witness and subjecting him or her to cross-examination.  The hearsay issue does arise, however, when the witness does not repeat or adopt the information contained in the out-of-court statement and the statement itself is tendered for the truth of its contents.  Consider the following example to illustrate the concerns raised by this evidence.

39   In an out-of-court statement, W identifies the accused as her assailant.  At the trial of the accused on a charge of assault, W testifies that the accused is not her assailant.  The Crown seeks to tender the out-of-court statement as proof of the fact that the accused did assault W.  In these circumstances, the trier of fact is asked to accept the out-of-court statement over the sworn testimony of the witness.  Given the usual premium placed on the value of in-court testimonial evidence, a serious issue arises as to whether it is at all necessary to introduce the statement.  In addition, the reliability of that statement becomes crucial.  How trustworthy is it?   In what circumstances did W make that statement?   Was it made casually to friends at a social function, or rather, to the police as a formal complaint?   Was W aware of the potential consequences of making that statement, did she intend that it be acted upon?   Did she have a motive to lie?   In what condition was W at the time she made the statement?  Many more questions can come to mind on matters that relate to the reliability of that out-of-court statement.  When the trier of fact is asked to consider the out-of-court statement as proof that the accused in fact assaulted W, assessing its reliability may prove to be difficult.

40   Concerns over the reliability of the statement also arise where W does not recant the out-of-court statement but testifies that she has no memory of making the statement, or worse still, no memory of the assault itself.  The trier of fact does not see or hear the witness making the statement and, because there is no opportunity to cross‑examine the witness contemporaneously with the making of the statement, there may be limited opportunity for a meaningful testing of its truth.  In addition, an issue may arise as to whether the prior statement is fully and accurately reproduced.

41   Hence, although the underlying rationale for the general exclusionary rule may not be as obvious when the declarant is available to testify, it is the same — the difficulty of testing the reliability of the out-of-court statement.  The difficulty of assessing W’s out-of-court statement is the reason why it falls within the definition of hearsay and is subject to the general exclusionary rule.  As one may readily appreciate, however, the degree of difficulty may be substantially alleviated in cases where the declarant is available for cross-examination on the earlier statement, particularly where  an accurate record of the statement can be tendered in evidence.  I will come back to that point later.  My point here is simply to explain why, by definition, hearsay extends to out-of-court statements tendered for their truth even when the declarant is before the court.

5.3      Hearsay Exceptions:  A Principled Approach

42   It has long been recognized that a rigid application of the exclusionary rule would result in the unwarranted loss of much valuable evidence.  The hearsay statement, because of the way in which it came about, may be inherently reliable, or there may be sufficient means of testing it despite its hearsay form.  Hence, a number of common law exceptions were gradually created.  A rigid application of these exceptions, in turn, proved problematic leading to the needless exclusion of evidence in some cases, or its unwarranted admission in others.  Wigmore urged greater flexibility in the application of the rule based on the two guiding principles that underlie the traditional common law exceptions:  necessity and reliability (Wigmore on Evidence (2nd ed. 1923), vol. III, — 1420, at p. 153).  This Court first accepted this approach in Khan and later recognized its primacy in Starr.  The governing framework, based on Starr, was recently summarized in R. v. Mapara, [2005] 1 S.C.R. 358, 2005 SCC 23, at para. 15:

(a)  Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions to the hearsay rule remain presumptively in place.

(b)  A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by the principled approach. The exception can be modified as necessary to bring it into compliance.

(c)  In “rare cases”, evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case.

(d)  If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity are established on a voir dire.

43   In this case, we are concerned with the admission of evidence under item (d).  In particular, the courts below were divided over two main questions:  (1) what factors must be considered in deciding whether the evidence is sufficiently reliable to be admitted; and (2) whether the “exception” recognized by this Court in U. (F.J.) can be extended to the facts of this case.  I will comment first on the second question.

44   In my view, the discussion over whether the “U. (F.J.) exception” applies here exemplifies the concern expressed in U. (F.J.) itself, that the “new approach to hearsay does not itself become a rigid pigeon-holing analysis” (para. 35).  In U. (F.J.), there was a similar debate over whether the “B. (K.G.) exception” to the rule against the substantive admission of prior inconsistent statements extended to circumstances where the reliability of the complainant’s statement was based, not so much on the circumstances in which it came about as was the case in B. (K.G.), but on its striking similarity to a statement made by the accused.  Lamer C.J. explained how his decision in B. (K.G.) was an application of the principled approach to hearsay, and how “[i]n addition . . . a threshold of reliability can sometimes be established, in cases where the witness is available for cross-examination, by a striking similarity between two statements” (para. 40).  He concluded his analysis by anticipating that yet other situations may arise.  He stated the following (at para. 45):

I anticipate that instances of statements so strikingly similar as to bolster their reliability will be rare.  In keeping with our principled and flexible approach to hearsay, other situations may arise where prior inconsistent statements will be judged substantively admissible, bearing in mind that cross-examination alone provides significant indications of reliability.  It is not necessary in this case to decide if cross-examination alone provides an adequate assurance of threshold reliability to allow substantive admission of prior inconsistent statements.

45   As I will discuss later, both B. (K.G.) and U. (F.J.) highlight the particular concerns raised in cases of prior inconsistent statements.  However, following Lamer C.J.’s own words of caution against “rigid pigeon-holing analysis”, it is my view that neither B. (K.G.) nor U. (F.J.) should be interpreted as creating categorical exceptions to the rule against hearsay based on fixed criteria.  The majority judgment in B. (K.G.) itself leaves room for appropriate substitutes for the criteria it sets out.  Further, to interpret these cases as creating new categories of exceptions would not be in keeping with the flexible case-by-case principled approach.  We would simply be replacing the traditional set of exceptions with a new and (for the time being) less ossified one. Rather, these cases provide guidance — not fixed categories — on the application of the principled case-by-case approach by identifying the relevant concerns and the factors to be considered in determining admissibility.

46   I will review B. (K.G.) and U. (F.J.) in this light as well as some other relevant decisions from this Court.  Since the issues raised on this appeal relate to the assessment of reliability, my analysis will be focussed on that criterion.  However, as I will explain, necessity and reliability should not be considered in isolation.  One criterion may impact on the other.  For example, as we shall see, in some cases the need for the evidence may, in large part, be based on the fact that the hearsay statement is highly reliable and the fact-finding process would be distorted without it.  However, before I discuss the factors relating to reliability, I want to say a word on the overarching principle of trial fairness.

5.4      Constitutional Dimension:  Trial Fairness

47   Prior to admitting hearsay statements under the principled exception to the hearsay rule, the trial judge must determine on a voir dire that necessity and reliability  have been established.  The onus is on the person who seeks to adduce the evidence to establish these criteria on a balance of probabilities.  In a criminal context, the inquiry may take on a constitutional dimension, because difficulties in testing the evidence, or conversely the inability to present reliable evidence, may impact on an accused’s ability to make full answer and defence, a right protected by s. 7 of the Canadian Charter of Rights and Freedoms: Dersch v. Canada (Attorney General), 1990 CanLII 3820 (SCC), [1990] 2 S.C.R. 1505.  The right to make full answer and defence in turn is linked to another principle of fundamental justice, the right to a fair trial:  R. v. Rose, 1998 CanLII 768 (SCC), [1998] 3 S.C.R. 262.  The concern over trial fairness is one of the paramount reasons for rationalizing  the traditional hearsay exceptions in accordance with the principled approach.  As stated by Iacobucci J. in Starr, at para. 200, in respect of Crown evidence:  “It would compromise trial fairness, and raise the spectre of wrongful convictions, if the Crown is allowed to introduce unreliable hearsay against the accused, regardless of whether it happens to fall within an existing exception.”

48   As indicated earlier, our adversary system is based on the assumption that sources of untrustworthiness or inaccuracy can best be brought to light under the test of cross-examination.  It is mainly because of the inability to put hearsay evidence to that test, that it is presumptively inadmissible.  However, the constitutional right guaranteed under s. 7 of the Charter is not the right to confront or cross-examine adverse witnesses in itself.  The adversarial trial process, which includes cross‑examination, is but the means to achieve the end.  Trial fairness, as a principle of fundamental justice, is the end that must be achieved.  Trial fairness embraces more than the rights of the accused.  While it undoubtedly includes the right to make full answer and defence, the fairness of the trial must also be assessed in the light of broader societal concerns:  see R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668, at paras. 69-76.  In the context of an admissibility inquiry, society’s interest in having the trial process arrive at the truth is one such concern.

49   The broader spectrum of interests encompassed in trial fairness is reflected in the twin principles of necessity and reliability.  The criterion of necessity is founded on society’s interest in getting at the truth.  Because it is not always possible to meet the optimal test of contemporaneous cross-examination, rather than simply losing the value of the evidence, it becomes necessary in the interests of justice to consider whether it should nonetheless be admitted in its hearsay form.  The criterion of reliability is about ensuring the integrity of the trial process.  The evidence, although needed, is not admissible unless it is sufficiently reliable to overcome the dangers arising from the difficulty of testing it.  As we shall see, the reliability requirement will generally be met on the basis of two different grounds, neither of which excludes consideration of the other.  In some cases, because of the circumstances in which it came about, the contents of the hearsay statement may be so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process.  In other cases, the evidence may not be so cogent but the circumstances will allow for sufficient testing of evidence by means other than contemporaneous cross‑examination.  In these circumstances, the admission of the evidence will rarely undermine trial fairness.  However, because trial fairness may encompass factors beyond the strict inquiry into necessity and reliability, even if the two criteria are met, the trial judge has the discretion to exclude hearsay evidence where its probative value is outweighed by its prejudicial effect.

6.        The Admissibility Inquiry

6.1      Distinction Between Threshold and Ultimate Reliability: A Source of Confusion

50   As stated earlier, the trial judge only decides whether hearsay evidence is admissible.  Whether the hearsay statement will or will not be ultimately relied upon in deciding the issues in the case is a matter for the trier of fact to determine at the conclusion of the trial based on a consideration of the statement in the context of the entirety of the evidence.  It is important that the trier of fact’s domain not be encroached upon at the admissibility stage.  If the trial is before a judge and jury, it is crucial that questions of ultimate reliability be left for the jury — in a criminal trial, it is constitutionally imperative.  If the judge sits without a jury, it is equally important that he or she not prejudge the ultimate reliability of the evidence before having heard all of the evidence in the case. Hence, a distinction must be made between “ultimate reliability” and “threshold reliability”.  Only the latter is inquired into on the admissibility voir dire.

51   The distinction between threshold and ultimate reliability has been made in a number of cases (see, for example, B. (K.G.) and R. v. Hawkins, 1996 CanLII 154 (SCC), [1996] 3 S.C.R. 1043), but we are mainly concerned here with the elaboration of this principle in Starr.  In particular, the following excerpt from the Court’s analysis has been the subject of much of the discussion and commentary (at paras. 215 and 217):

In this connection, it is important when examining the reliability of a statement under the principled approach to distinguish between threshold and ultimate reliability.  Only the former is relevant to admissibility:  see Hawkins, supra, at p. 1084.  Again, it is not appropriate in the circumstances of this appeal to provide an exhaustive catalogue of the factors that may influence threshold reliability.  However, our jurisprudence does provide some guidance on this subject.  Threshold reliability is concerned not with whether the statement is true or not; that is a question of ultimate reliability.  Instead, it is concerned with whether or not the circumstances surrounding the statement itself provide circumstantial guarantees of trustworthiness.  This could be because the declarant had no motive to lie (see Khan, supra; Smith, supra), or because there were safeguards in place such that a lie could be discovered (see Hawkins, supra; U. (F.J.), supra; B. (K.G.), supra).

. . .

At the stage of hearsay admissibility the trial judge should not consider the declarant’s general reputation for truthfulness, nor any prior or subsequent statements, consistent or not.  These factors do not concern the circumstances of the statement itself.  Similarly, I would not consider the presence of corroborating or conflicting evidence.  On this point, I agree with the Ontario Court of Appeal’s decision in R. v. C. (B.) (1993), 1993 CanLII 8564 (ON CA), 12 O.R. (3d) 608; see also Idaho v. Wright, 497 U.S. 805 (1990).  In summary, under the principled approach a court must not invade the province of the trier of fact and condition admissibility of hearsay on whether the evidence is ultimately reliable.  However, it will need to examine whether the circumstances in which the statement was made lend sufficient credibility to allow a finding of threshold reliability. [Underlining added.]

52   The Court’s statement that “[t]hreshold reliability is concerned not with whether the statement is true or not” has created some uncertainty.  While it is clear that the trial judge does not determine whether the statement will ultimately be relied upon as true, it is not so clear that in every case threshold reliability is not concerned with whether the statement is true or not.  Indeed, in U. (F.J.), the rationale for admitting the complainant’s hearsay statement was based on the fact that “the only likely explanation” for its striking similarity with the independent statement of the accused was that “they were both telling the truth” (para. 40).

53   Further, it is not easy to discern what is or is not a circumstance “surrounding the statement itself”.  For example, in Smith, the fact that the deceased may have had a motive to lie was considered by the Court in determining threshold admissibility.  As both Rosenberg J.A. and Blair J.A. point out in their respective reasons, “in determining whether the declarant had a motive to lie, the judge will necessarily be driven to consider factors outside the statement itself or the immediately surrounding circumstances” (para. 97).

54   Much of the confusion in this area of the law has arisen from this attempt to categorically label some factors as going only to ultimate reliability.  The bar against considering “corroborating or conflicting evidence”, because it is only relevant to the question of ultimate reliability, is a further example.  Quite clearly, the corroborative nature of the semen stain in Khan played an important part in establishing the threshold reliability of the child’s hearsay statement in that case.

55   This part of the analysis in Starr therefore requires clarification and, in some respects, reconsideration.  I will explain how the relevant factors to be considered on an admissibility inquiry cannot invariably be categorized as relating either to threshold or ultimate reliability.  Rather, the relevance of any particular factor will depend on the particular dangers arising from the hearsay nature of the statement and the available means, if any, of overcoming them.  I will then return to the impugned passage in Starr, dealing more specifically with the question of supporting evidence since that reference appears to have raised the most controversy.

6.2      Identifying the Relevant Factors:  A Functional Approach

6.2.1   Recognizing Hearsay

56   The first matter to determine before embarking on a hearsay admissibility inquiry, of course, is whether the proposed evidence is hearsay.  This may seem to be a rather obvious matter, but it is an important first step.  Misguided objections to the admissibility of an out-of-court statement based on a misunderstanding of what constitutes hearsay are not uncommon.  As discussed earlier, not all out-of-court statements will constitute hearsay.  Recall the defining features of hearsay.  An out‑of‑court statement will be hearsay when:  (1) it is adduced to prove the truth of its contents and (2) there is no opportunity for a contemporaneous cross‑examination of the declarant.

57   Putting one’s mind to the defining features of hearsay at the outset serves to better focus the admissibility inquiry.  As we have seen, the first identifying feature of hearsay calls for an inquiry into the purpose for which it is adduced.  Only when the evidence is being tendered for its truth will it constitute hearsay.  The fact that the out‑of-court statement is adduced for its truth should be considered in the context of the issues in the case so that the court may better assess the potential impact of introducing the evidence in its hearsay form.

58   Second, by putting one’s mind, at the outset, to the second defining feature of hearsay — the absence of an opportunity for contemporaneous cross-examination of the declarant, the admissibility inquiry is immediately focussed on the dangers of admitting hearsay evidence.  Iacobucci J. in Starr identified the inability to test the evidence as the “central concern” underlying the hearsay rule.  Lamer C.J. in U. (F.J.) expressed the same view but put it more directly by stating:  “Hearsay is inadmissible as evidence because its reliability cannot be tested” (para. 22).

6.2.2   Presumptive Inadmissibility of Hearsay Evidence

59   Once the proposed evidence is identified as hearsay, it is presumptively inadmissible.  I stress the nature of the hearsay rule as a general exclusionary rule because the increased flexibility introduced in the Canadian law of evidence in the past few decades has sometimes tended to blur the distinction between admissibility and weight.  Modifications have been made to a number of rules, including the rule against hearsay, to bring them up to date and to ensure that they facilitate rather than impede the goals of truth seeking, judicial efficiency and fairness in the adversarial process. However, the traditional rules of evidence reflect considerable wisdom and judicial experience.  The modern approach has built upon their underlying rationale, not discarded it.  In Starr itself, where this Court recognized the primacy of the principled approach to hearsay exceptions, the presumptive exclusion of hearsay evidence was reaffirmed in strong terms.  Iacobucci J. stated as follows (at para. 199):

By excluding evidence that might produce unfair verdicts, and by ensuring that litigants will generally have the opportunity to confront adverse witnesses, the hearsay rule serves as a cornerstone of a fair justice system.

6.2.3   Traditional Exceptions

60   The Court in Starr also reaffirmed the continuing relevance of the traditional exceptions to the hearsay rule.  More recently, this Court in Mapara reiterated the continued application of the traditional exceptions in setting out the governing analytical framework, as noted in para. 42 above. Therefore, if the trial judge determines that the evidence falls within one of the traditional common law exceptions, this finding is conclusive and the evidence is ruled admissible, unless, in a rare case, the exception itself is challenged as described in both those decisions.

6.2.4   Principled Approach: Overcoming the Hearsay Dangers

61   Since the central underlying concern is the inability to test hearsay evidence, it follows that under the principled approach the reliability requirement is aimed at identifying those cases where this difficulty is sufficiently overcome to justify receiving the evidence as an exception to the general exclusionary rule.  As some courts and commentators have expressly noted, the reliability requirement is usually met in two different ways:  see, for example, R. v. Wilcox (2001), 152 C.C.C. (3d) 157, 2001 NSCA 45; R. v. Czibulka (2004), 2004 CanLII 22985 (ON CA), 189 C.C.C. (3d) 199 (Ont. C.A.); D. M. Paciocco,  “The Hearsay Exceptions:  A Game of ‘Rock, Paper, Scissors’”, in Special Lectures of the Law Society of Upper Canada 2003: The Law of Evidence (2004), 17, at p. 29.

62   One way is to show that there is no real concern about whether the statement is true or not because of the circumstances in which it came about.  Common sense dictates that if we can put sufficient trust in the truth and accuracy of the statement, it should be considered by the fact finder regardless of its hearsay form.  Wigmore explained it this way:

There are many situations in which it can be easily seen that such a required test [i.e., cross-examination] would add little as a security, because its purposes had been already substantially accomplished.  If a statement has been made under such circumstances that even a sceptical caution would look upon it as trustworthy (in the ordinary instance), in a high degree of probability, it would be pedantic to insist on a test whose chief object is already secured. [— 1420, p. 154]

63   Another way of fulfilling the reliability requirement is to show that no real concern arises from the fact that the statement is presented in hearsay form because, in the circumstances, its truth and accuracy can nonetheless be sufficiently tested. Recall that the optimal way of testing evidence adopted by our adversarial system is to have the declarant state the evidence in court, under oath, and under the scrutiny of contemporaneous cross-examination.  This preferred method is not just a vestige of past traditions. It remains a tried and true method, particularly when credibility issues must be resolved.  It is one thing for a person to make a damaging statement about another in a context where it may not really matter. It is quite another for that person to repeat the statement in the course of formal proceedings where he or she must commit to its truth and accuracy, be observed and heard, and be called upon to explain or defend it.  The latter situation, in addition to providing an accurate record of what was actually said by the witness, gives us a much higher degree of comfort in the statement’s trustworthiness.  However, in some cases it is not possible to put the evidence to the optimal test, but the circumstances are such that the trier of fact will nonetheless be able to sufficiently test its truth and accuracy.  Again, common sense tells us that we should not lose the benefit of the evidence when there are adequate substitutes for testing the evidence.

64   These two principal ways of satisfying the reliability requirement can also be discerned in respect of the traditional exceptions to the hearsay rule.  Iacobucci J.  notes this distinction in Starr, stating as follows:

For example, testimony in former proceedings is admitted, at least in part, because many of the traditional dangers associated with hearsay are not present.  As pointed out in Sopinka, Lederman and Bryant, supra, at pp. 278-79:

. . . a statement which was earlier made under oath, subjected to cross‑examination and admitted as testimony at a former proceeding is received in a subsequent trial because the dangers underlying hearsay evidence are absent.

Other exceptions are based not on negating traditional hearsay dangers, but on the fact that the statement provides circumstantial guarantees of reliability.  This approach is embodied in recognized exceptions such as dying declarations, spontaneous utterances, and statements against pecuniary interest.  [Emphasis added by Iacobucci J.; para. 212.]

65   Some of the traditional exceptions stand on a different footing, such as admissions from parties (confessions in the criminal context) and co-conspirators’ statements:  see Mapara, at para. 21.  In those cases, concerns about reliability are based on considerations other than the party’s inability to test the accuracy of his or her own statement or that of his or her co-conspirators.  Hence, the criteria for admissibility are not established in the same way.  However, in cases where the exclusionary rule is based on the usual hearsay dangers, this distinction between the two principal ways of satisfying the reliability requirement, although not by any means one that creates mutually exclusive categories, may assist in identifying what factors need to be considered on the admissibility inquiry.

66   Khan is an example where the reliability requirement was met because the circumstances in which the statement came about provided sufficient comfort in its truth and accuracy.  Similarly in Smith, the focus of the admissibility inquiry was also on those circumstances that tended to show that the statement was true.  On the other hand, the admissibility of the hearsay statement in B. (K.G.) and Hawkins was based on the presence of adequate substitutes for testing the evidence.  As we shall see, the availability of the declarant for cross-examination goes a long way to satisfying the requirement for adequate substitutes.  In U. (F.J.), the Court considered both those circumstances tending to show that the statement was true and the presence of adequate substitutes for testing the evidence.  U. (F.J.) underscores the heightened concern over reliability in the case of prior inconsistent statements where the trier of fact is invited to accept an out-of-court statement over the sworn testimony from the same declarant.  I will briefly review how the analysis of the Court in each of those cases was focussed on overcoming the particular hearsay dangers raised by the evidence.

6.2.4.1   R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531

67   As stated earlier, Khan is an example where the reliability requirement was met because the circumstances in which the statement came about provided sufficient comfort in its truth and accuracy.  The facts are well known.  Khan involved a sexual assault on a very young child by her doctor.  The child was incompetent to testify.  The child’s statements to her mother about the incident were inadmissible under any of the traditional hearsay exceptions. However, the child’s statement had several characteristics that suggested the statement was true.  Those characteristics answered many of the concerns that one would expect would be inquired into in testing the evidence, had it been available for presentation in open court in the usual way.  McLachlin J., in the following oft-quoted statement, summarized them in this way:

I conclude that the mother’s statement in the case at bar should have been received.  It was necessary, the child’s viva voce evidence having been rejected.  It was also reliable.  The child had no motive to falsify her story, which emerged naturally and without prompting.  Moreover, the fact that she could not be expected to have knowledge of such sexual acts imbues her statement with its own peculiar stamp of reliability.  Finally, her statement was corroborated by real evidence.  [p. 548]

The facts also revealed that the statement was made almost immediately after the event. That feature removed any concern about inaccurate memory.  The fact that the child had no reason to lie alleviated the concern about sincerity.  Because the statement was made naturally and without prompting, there was no real danger that it came about because of the mother’s influence.  Most importantly, as stated in the above excerpt, the event described was one that would ordinarily be outside the experience of a child of her age giving it a “peculiar stamp of reliability”.  Finally, the statement was confirmed by a semen stain on the child’s clothing.  These characteristics each went to the truth and accuracy of the statement and, taken together, amply justified its admission. The criterion of reliability was met.  There is nothing controversial about the factors considered in Khan, except for the supportive evidence of the semen stain. I will come back to that point later.

6.2.4.2   R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915

68   In Smith, this Court’s inquiry into the circumstantial guarantees of reliability was also focussed on those circumstances that tended to show that the statement was true.

69   Smith was charged with the murder of K.  The Crown’s evidence included the testimony of K’s mother about four telephone calls K made to her on the night of the murder.  Defence counsel did not object to this evidence.  Smith was convicted at trial.  The Court of Appeal allowed the appeal and ordered a new trial on the ground that the phone calls were hearsay, and only the first two were admissible for the purpose of establishing K’s state of mind. In refusing to apply the curative proviso, the Court of Appeal found that the hearsay had been used to place Smith with K at the time of her death, thereby “buttressing certain identification evidence of questionable reliability” (pp. 922-23).  The Crown appealed to this Court.

70   After ruling that the state of mind, or “present intentions” exception did not apply to the phone calls, Lamer C.J. went on to elaborate on and then apply the approach outlined in Khan.  After quoting extensively from Wigmore on the underlying rationale for the hearsay rule and its exceptions, he elaborated on the reliability prong of the principled analysis and stated as follows (at p. 933):

If a statement sought to be adduced by way of hearsay evidence is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken, the hearsay evidence may be said to be “reliable”, i.e., a circumstantial guarantee of trustworthiness is established.  [Emphasis added.]

71   In determining whether the phone calls were reliable, Lamer C.J. held that the first two were, but the third was not (the fourth was not in issue on appeal to this Court).  With respect to the first two, there was no reason to doubt K’s veracity — “[s]he had no known reason to lie” — and the traditional dangers associated with hearsay — perception, memory and credibility — “were not present to any significant degree” (p. 935).  As we can see, the Court looked at factors that would likely have been inquired into during the course of cross-examination if the declarant had been available to testify and found that these usual concerns were largely alleviated because of the way in which the statements came about.  Hence, the Court concluded that the absence of the ability to cross-examine K should go to the weight given to this evidence, not its admissibility.

72   With respect to the third phone call, however, Lamer C.J. held that “the conditions under which the statement was made do not . . . provide that circumstantial guarantee of trustworthiness that would justify its admission without the possibility of cross‑examination” (p. 935).  First, he held that she may have been mistaken about Smith returning to the hotel, or about his purpose in returning (p. 936).  Second, he held that she might have lied to prevent her mother from sending another man to pick her up.  With respect to this second possibility, Lamer C.J. held that the fact that K had been travelling under an assumed name with a credit card which she knew was either stolen or forged demonstrated that she was “at least capable of deceit” (p. 936).  Again, the Court looked at factors that would likely have been inquired into during the course of cross‑examination if the declarant had been available to testify and concluded that these “hypotheses” showed that the circumstances of the statement were not such as to “justify the admission of its contents” since it was impossible to say that the evidence was unlikely to change under cross-examination (p. 937).  It is important to note that the Court did not go on to determine whether, on its view of the evidence, the declarant was mistaken or whether she had lied — those would be matters for the ultimate trier of fact to decide.  On the admissibility inquiry, it sufficed that the circumstances in which the statement was made gave rise to these issues to bar its admission.

6.2.4.3   R. v. B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740

73   B. (K.G.) provides an example where threshold reliability was essentially based on the presence of adequate substitutes for the traditional safeguards relied upon to test the evidence.

74   The issue in B. (K.G.) was the substantive admissibility of prior inconsistent statements made by three of B’s friends, in which they told the police that B was responsible for stabbing and killing the victim in the course of a fight.  The three recanted their statements at trial.  (They subsequently plead guilty to perjury.)  The Crown sought to admit the prior statements to police for the truth of their contents. Although the trial judge had no doubt the recantations were false, he followed the traditional common law (“orthodox”) rule that the statements could be used only to impeach the witnesses.  In light of the doubtfulness of the other identification evidence, the trial judge acquitted B.

75   The issue before this Court was whether the orthodox rule in respect of prior inconsistent statements should be maintained.  In reviewing its history, Lamer C.J. noted that, although the prohibition on hearsay was not always recognized as the basis for the rule, similar “dangers” were cited as reasons against admission, namely absence of an oath or affirmation, inability of the trier of fact to assess demeanour, and lack of contemporaneous cross-examination (pp. 763-64).  After reviewing the academic criticism, the views of law reform commissioners, legislative changes in Canada and elsewhere, and developments in the law of hearsay, Lamer C.J. concluded that it was the province and duty of the Court to formulate a new rule (p. 777).  He held that “evidence of prior inconsistent statements of a witness other than an accused should be substantively admissible on a principled basis, following this Court’s decisions in Khan and Smith” with the requirements of reliability and necessity “adapted and refined in this particular context, given the particular problems raised by the nature of such statements” (p. 783).

76   The most important contextual factor in B. (K.G.) is the availability of the declarant.  Unlike the situation in Khan or Smith, the trier of fact is in a much better position to assess the reliability of the evidence because the declarant is available to be cross-examined on his or her prior inconsistent statement.  The admissibility inquiry into threshold reliability, therefore, is not so focussed on the question whether there is reason to believe the statement is true, as it is on the question whether the trier of fact will be in a position to rationally evaluate the evidence.  The search is for adequate substitutes for the process that would have been available had the evidence been presented in the usual way, namely through the witness, under oath or affirmation, and subject to the scrutiny of contemporaneous cross-examination.

77   Since the declarant testifies in court, under oath or affirmation, and is available for cross-examination, the question becomes why there is any remaining concern over the reliability of the prior statement.  As I have indicated earlier, necessity and reliability should not be considered in isolation.  One criterion may have an impact on the other.  The situation in B. (K.G.) is one example.  As noted by Lamer C.J., “[p]rior inconsistent statements present vexing problems for the necessity criterion” (p. 796).  Indeed, the declarant is available as a witness.  Why should not the usual rule apply and the recanting witness’s sworn testimony alone go to the truth of the matter?   After all, is that not the optimal test on reliability — that the witness come forth to be seen and heard, swear or affirm to tell the truth in the formal context of court proceedings, and be subjected to cross-examination?   If a witness recants a prior statement and denies its truth, the default position is to conclude that the trial process has worked as intended — untruthful or inaccurate information will have been weeded out.  There must be good reason to present the prior inconsistent statement as substantive proof over the sworn testimony given in court.

78   As we know, the Court ultimately ruled in B. (K.G.), and the principle is now well established, that necessity is not to be equated with the unavailability of the witness.  The necessity criterion is given a flexible definition.  In some cases, such as in B. (K.G.) where a witness recants an earlier statement, necessity is based on the unavailability of the testimony, not the witness.  Notwithstanding the fact that the necessity criterion can be met on varied bases, the context giving rise to the need for the evidence in its hearsay form may well impact on the degree of reliability required to justify its admission.  As stated by Lamer C.J. in B. (K.G.), where the hearsay evidence is a prior inconsistent statement, reliability is a “key concern” (at pp. 786-87):

The reliability concern is sharpened in the case of prior inconsistent statements because the trier of fact is asked to choose between two statements from the same witness, as opposed to other forms of hearsay in which only one account from the declarant is tendered.  In other words, the focus of the inquiry in the case of prior inconsistent statements is on the comparative reliability of the prior statement and the testimony offered at trial, and so additional indicia and guarantees of reliability to those outlined in Khan and Smith must be secured in order to bring the prior statement to a comparable standard of reliability before such statements are admitted as substantive evidence.

79   Lamer C.J. went on to describe the general attributes of in-court testimony that provide the usual safeguards for reliability.  He reviewed at some length the compelling reasons to prefer statements made under oath or affirmation, the value of seeing and hearing the witness in assessing credibility, the importance of having an accurate record of what was actually said, and the value of contemporaneous cross‑examination.  In considering what would constitute an adequate substitute in respect of the prior inconsistent statement, he concluded  (at pp. 795-96) that there will be “sufficient circumstantial guarantees of reliability” to render such statements substantively admissible where

(i) the statement is made under oath or solemn affirmation following a warning as to the existence of sanctions and the significance of the oath or affirmation, (ii) the statement is videotaped in its entirety, and (iii) the opposing party . . . has a full opportunity to cross‑examine the witness respecting the statement . . . . Alternatively, other circumstantial guarantees of reliability may suffice to render such statements substantively admissible, provided that the judge is satisfied that the circumstances provide adequate assurances of reliability in place of those which the hearsay rule traditionally requires.

80   To say that a statement is sufficiently reliable because it is made under oath, in person, and the maker is cross-examined is somewhat of a misnomer.  A lot of courtroom testimony proves to be totally unreliable.  However, therein lies the safeguard — in the process that has uncovered its untrustworthiness.  Hence, the presence of adequate substitutes for that process establishes a threshold of reliability and makes it safe to admit the evidence.

81   Lamer C.J. also added an important proviso, to which I will return later, on the trial judge’s discretion to refuse to allow the jury to make substantive use of the statement, even where the criteria outlined above are satisfied when there is any concern that the statement may be the product of some form of investigatory misconduct (pp. 801-2).  Here, although the statements were videotaped, and the witnesses were cross-examined, the statements were not made under oath.  Whether there was a sufficient substitute to warrant substantive admission was sent back to be determined by the trial judge (p. 805).  The appeal was allowed and a new trial ordered.  Cory J. (L’Heureux-Dubé J. concurring) agreed with the result but for different reasons that, for the purpose of our analysis, need not be reviewed here.

6.2.4.4   R. v. U. (F.J.), 1995 CanLII 74 (SCC), [1995] 3 S.C.R. 764

82   U. (F.J.) brought back to the Court the issue of admissibility of prior inconsistent statements.  In an interview with police, the complainant, J.U., told the interviewing officer that the accused, her father, was having sex with her “almost every day” (para. 4).  She gave considerable details about the sexual activity and also described two physical assaults.  The interviewing police officer later testified that he had attempted to tape the interview, but that the tape recorder had malfunctioned.  He subsequently prepared a summary, based partly on notes and partly on his memory.

83   Immediately after interviewing J.U., the same officer interviewed the accused.  Again, the interview was not taped.  The accused admitted to having sex with J.U. “many times”, describing similar sexual acts and the two physical assaults that J.U. had described (para. 5).  At trial, J.U. recanted the allegations of sexual abuse.  She claimed to have lied at the behest of her grandmother.  The accused denied having told police that he had engaged in sexual activity with J.U.

84   The focus of the discussion before this Court was whether the “rule” in B. (K.G.) applied to this case.  Although the criteria in B. (K.G.) were based on the principled approach in Khan and Smith, it was not clear whether B. (K.G.) established a distinct “rule” for admitting prior inconsistent statements.  Lamer C.J. sought to clarify the relationship between these cases, stating as follows (at para. 35):

Khan and Smith establish that hearsay evidence will be substantively admissible when it is necessary and sufficiently reliable.  Those cases also state that both necessity and reliability must be interpreted flexibly, taking account of the circumstances of the case and ensuring that our new approach to hearsay does not itself become a rigid pigeon-holing analysis. My decision in B. (K.G.) is an application of those principles to a particular branch of the hearsay rule, the rule against the substantive admission of prior inconsistent statements.  The primary distinction between B. (K.G.), on the one hand, and Khan and Smith, on the other, is that in B. (K.G.) the declarant is available for cross-examination.  This fact alone goes part of the way to ensuring that the reliability criterion for admissibility is met.  The case at bar differs from B. (K.G.) only in terms of available indicia of reliability.  Necessity is met here in the same way it was met in B. (K.G.):  the prior statement is necessary because evidence of the same quality cannot be obtained at trial.  For that reason, assessing the reliability of the prior inconsistent statement at issue here is determinative.

85   Lamer C.J. went on to determine how the indicia of reliability could be founded on different criteria than those set out in B. (K.G.).  The complainant’s statement to the police was not made under oath.  Nor was it videotaped.  Most importantly, however, the declarant was available for cross-examination, thereby significantly alleviating the usual dangers arising from the introduction of hearsay evidence.  Yet, the same concerns about the reliability of the prior inconsistent statement arose in this case.  The complainant had recanted her earlier allegations.  In the usual course of the trial process, this should be the end of the matter.  Consider, for example, if the complainant had made the earlier allegations about being sexually assaulted by her father to some girlfriends in the context of playing a game of “Truth or Dare” where each player was being encouraged to outdo the previous one by saying or doing something outrageous. It would be difficult to find justification for introducing her casual statement as substantive proof over her sworn testimony that the events never happened.  Hence, the focus must turn on the reliability of the prior inconsistent statement.

86   In B. (K.G.), the Court held that a prior inconsistent statement is sufficiently reliable for substantive admission if it is made in circumstances comparable to the giving of in-court testimony.  In U. (F.J.), the reliability requirement was met rather by showing that there was no real concern about whether the complainant was speaking the truth in her statement to the police.  The striking similarities between her statement and the independent statement made by her father were so compelling that the only likely explanation was that they were both telling the truth.  Again here, the criteria of necessity and reliability intersect.  In the interest of seeking the truth, the very high reliability of the statement rendered its substantive admission necessary.

87   Again here, Lamer C.J. added the following proviso (at para. 49):

I would also highlight here the proviso I specified in B. (K.G.) that the trial judge must be satisfied on the balance of probabilities that the statement was not the product of coercion of any form, whether involving threats, promises, excessively leading questions by the investigator or other person in a position of authority, or other forms of investigatory misconduct.

6.2.4.5   R. v. Hawkins, 1996 CanLII 154 (SCC), [1996] 3 S.C.R. 1043

88   This Court’s decision in Hawkins was concerned mainly with the issue of spousal incompetency.  However, it is also instructive on the application of the principled approach to the hearsay rule.  My remarks here are confined to the latter aspect of the case.  It exemplifies how, in some circumstances, the reliability requirement may be established solely by the presence of adequate substitutes for the safeguards traditionally relied upon to test trial testimony.  As we shall see, again here, the opportunity to cross-examine the declarant was a crucial factor.  Because there were sufficient indicia of reliability so as to afford the trier of fact a satisfactory basis for evaluating the truth of the statement, the Court concluded that the trial judge erred in excluding the statement based on its perceived lack of probative value.

89   Hawkins, a police officer, was charged with obstructing justice and corruptly accepting money.  His then girlfriend, G, testified at his preliminary inquiry.  After testifying the first time, G brought an application to testify again and recanted much of what she had said, with explanations.  By the time of the trial, Hawkins and G were married and therefore G was incompetent to testify under s. 4 of the Canada Evidence Act.  After ruling that the common law rule of spousal incompetency applied, and that G’s testimony at the preliminary inquiry could not be read in at trial under s. 715 of the Criminal Code, the trial judge held that the evidence was not admissible under the principled approach because it was not sufficiently reliable.  Hawkins was acquitted.  The verdict was overturned by majority decision of the Court of Appeal for Ontario. On further appeal to this Court, the appeal was dismissed but for different reasons.  This Court refused to modify the common law rule of spousal incompetency as it was invited to do.  The Court agreed with the trial judge that the common law rule applied, and the testimony could not be read in under s. 715.  However, a majority of the Court held that the preliminary inquiry testimony could be read in at trial under the principled approach to the admission of hearsay.  The three dissenting judges held that this violated the policy underlying s. 4 and should not be permitted.

90   After determining that the necessity criterion was met, Lamer C.J. and Iacobucci J. (Gonthier and Cory JJ. concurring) addressed reliability.  In the circumstances of this case, it could hardly be said that the complainant’s testimony was inherently trustworthy.  She had given contradictory versions, all under oath.  Rather,  the Court looked for the presence of a satisfactory basis for evaluating the truth of the statement, stating as follows, at para. 75:

The criterion of reliability is concerned with threshold reliability, not ultimate reliability. The function of the trial judge is limited to determining whether the particular hearsay statement exhibits sufficient indicia of reliability so as to afford the trier of fact a satisfactory basis for evaluating the truth of the statement.  More specifically, the judge must identify the specific hearsay dangers raised by the statement, and then determine whether the facts surrounding the utterance of the statement offer sufficient circumstantial guarantees of trustworthiness to compensate for those dangers. The ultimate reliability of the statement, and the weight to be attached to it, remain determinations for the trier of fact.  [Emphasis added.]

91   The Court held that, generally, a witness’s testimony before a preliminary inquiry will satisfy the test for threshold reliability, since the fact that it was given under oath and subject to contemporaneous cross-examination in a hearing involving the same parties and mainly the same issues will provide sufficient guarantees of its trustworthiness (para. 76).  In addition, the accuracy of the statement is certified by a written transcript which is signed by the judge, and the party against whom the hearsay evidence is tendered has the power to call the declarant as a witness.  The inability of the trier of fact to observe demeanour was found to be “more than compensated by the circumstantial guarantees of trustworthiness inherent in the adversarial, adjudicative process of a preliminary inquiry” (para. 77).  The fact that the early common law was prepared to admit former testimony under certain circumstances indicated an implicit acceptance of its reliability notwithstanding the lack of the declarant’s presence (para. 78).  Therefore, Lamer C.J. and Iacobucci J. concluded (at para. 79):

For these reasons, we find that a witness’s recorded testimony before a preliminary inquiry bears sufficient hallmarks of trustworthiness to permit the trier of fact to make substantive use of such statements at trial.  The surrounding circumstances of such testimony, particularly the presence of an oath or affirmation and the opportunity for contemporaneous cross‑examination, more than adequately compensate for the trier of fact’s inability to observe the demeanour of the witness in court.  The absence of the witness at trial goes to the weight of such testimony, not to its admissibility.

Applying this reasoning to the statement at issue, it was found to be reliable (para. 80).

92   Lamer C.J. and Iacobucci J. added that the trial judge had erred in considering the internal contradictions contained in the testimony because these considerations properly related to the ultimate assessment of the actual probative value of the testimony, a matter for the trier of fact.  Although some of the analysis on this last point is couched in terms of categorizing factors as relevant to either threshold or ultimate reliability, an approach which should no longer be adopted, the Court’s conclusion on this point exemplifies where the line should be drawn on an inquiry into threshold reliability.  When the reliability requirement is met on the basis that the trier of fact has a sufficient basis to assess the statement’s truth and accuracy, there is no need to inquire further into the likely truth of the statement.  That question becomes one that is entirely left to the ultimate trier of fact and the trial judge is exceeding his or her role by inquiring into the likely truth of the statement.  When reliability is dependent on the inherent trustworthiness of the statement, the trial judge must inquire into those factors tending to show that the statement is true or not — recall U. (F.J.).

6.3      Revisiting Paragraphes 215 and 217 in Starr

93   As I trust it has become apparent from the preceding discussion, whether certain factors will go only to ultimate reliability will depend on the context.  Hence, some of the comments at paras. 215 and 217 in Starr should no longer be followed.  Relevant factors should not be categorized in terms of threshold and ultimate reliability.  Rather, the court should adopt a more functional approach as discussed above and focus on the particular dangers raised by the hearsay evidence sought to be introduced and on those attributes or circumstances relied upon by the proponent to overcome those dangers.  In addition, the trial judge must remain mindful of the limited role that he or she plays in determining admissibility — it is crucial to the integrity of the fact-finding process that the question of ultimate reliability not be pre-determined on the admissibility voir dire.

94   I want to say a few words on one factor identified in Starr, namely “the presence of corroborating or conflicting evidence” since it is that comment that appears to have raised the most controversy.  I repeat it here for convenience:

Similarly, I would not consider the presence of corroborating or conflicting evidence.  On this point, I agree with the Ontario Court of Appeal’s decision in R. v. C. (B.) (1993), 1993 CanLII 8564 (ON CA), 12 O.R. (3d) 608; see also Idaho v. Wright, 497 U.S. 805 (1990). [para. 217]

95   I will briefly review the two cases relied upon in support of this statement. The first does not really provide assistance on this question and the second, in my respectful view, should not be followed.

96   In R. v. C. (B.) (1993), 1993 CanLII 8564 (ON CA), 12 O.R. (3d) 608 (C.A.), the trial judge, in convicting the accused, had used a co‑accused’s statement as evidence in support of the complainant’s testimony.  The Court of Appeal held that this constituted an error.  While a statement made by a co-accused was admissible for its truth against the co‑accused, it remained hearsay as against the accused.  The co-accused had recanted his statement at trial.  His statement was not shown to be reliable so as to be admitted as an exception to the hearsay rule against the accused.  Therefore, this case is of no assistance on the question of whether supporting evidence should be considered or not in determining hearsay admissibility.  It simply reaffirms the well-established rule that an accused’s statement is only admissible against its maker, not the co-accused.

97   Idaho v. Wright, 497 U.S. 805 (1990), is more on point.  In that case, five of the nine justices of the United States Supreme Court were not persuaded that “evidence corroborating the truth of a hearsay statement may properly support a finding that the statement bears ‘particularized guarantees of trustworthiness’” (p. 822).  In the majority’s view, the use of corroborating evidence for that purpose “would permit admission of a presumptively unreliable statement by bootstrapping on the trustworthiness of other evidence at trial, a result we think at odds with the requirement that hearsay evidence admitted under the Confrontation Clause be so trustworthy that cross-examination of the declarant would be of marginal utility” (p. 823).  By way of example, the majority observed that a statement made under duress may happen to be true, but evidence tending to corroborate the truth of the statement would be no substitute for cross-examination of the declarant at trial.  The majority also raised the concern, arising mostly in child sexual abuse cases, that a jury may rely on the partial corroboration provided by medical evidence to mistakenly infer the trustworthiness of the entire allegation.

98   In his dissenting opinion, Kennedy J., with whom the remaining three justices concurred, strongly disagreed with the position of the majority on the potential use of supporting or conflicting evidence. In my view, his reasons echo much of the criticism that has been voiced about this Court’s position in Starr.  He said the following:

I see no constitutional justification for this decision to prescind corroborating evidence from consideration of the question whether a child’s statements are reliable.  It is a matter of common sense for most people that one of the best ways to determine whether what someone says is trustworthy is to see if it is corroborated by other evidence.  In the context of child abuse, for example, if part of the child’s hearsay statement is that the assailant tied her wrists or had a scar on his lower abdomen, and there is physical evidence or testimony to corroborate the child’s statement, evidence which the child could not have fabricated, we are more likely to believe that what the child says is true.  Conversely, one can imagine a situation in which a child makes a statement which is spontaneous or is otherwise made under circumstances indicating that it is reliable, but which also contains undisputed factual inaccuracies so great that the credibility of the child’s statements is substantially undermined. Under the Court’s analysis, the statement would satisfy the requirements of the Confrontation Clause despite substantial doubt about its reliability. [pp. 828-29]

99   Kennedy J. also strongly disagreed with the majority’s view that only circumstances surrounding the making of the statement should be considered:

The [majority] does not offer any justification for barring the consideration of corroborating evidence, other than the suggestion that corroborating evidence does not bolster the “inherent trustworthiness” of the statements. But for purposes of determining the reliability of the statements, I can discern no difference between the factors that the Court believes indicate “inherent trustworthiness” and those, like corroborating evidence, that apparently do not.  Even the factors endorsed by the Court will involve consideration of the very evidence the Court purports to exclude from the reliability analysis.  The Court notes that one test of reliability is whether the child “use[d] . . . terminology unexpected of a child of similar age.”  But making this determination requires consideration of the child’s vocabulary skills and past opportunity, or lack thereof, to learn the terminology at issue.  And, when all of the extrinsic circumstances of a case are considered, it may be shown that use of a particular word or vocabulary in fact supports the inference of prolonged contact with the defendant, who was known to use the vocabulary in question.  As a further example, the Court notes that motive to fabricate is an index of reliability.  But if the suspect charges that a third person concocted a false case against him and coached the child, surely it is relevant to show that the third person had no contact with the child or no opportunity to suggest false testimony.  Given the contradictions inherent in the Court’s test when measured against its own examples, I expect its holding will soon prove to be as unworkable as it is illogical.

The short of the matter is that both the circumstances existing at the time the child makes the statements and the existence of corroborating evidence indicate, to a greater or lesser degree, whether the statements are reliable. If the Court means to suggest that the circumstances surrounding the making of a statement are the best indicators of reliability, I doubt this is so in every instance.  And, if it were true in a particular case, that does not warrant ignoring other indicators of reliability such as corroborating evidence, absent some other reason for excluding it.  If anything, I should think that corroborating evidence in the form of testimony or physical evidence, apart from the narrow circumstances in which the statement was made, would be a preferred means of determining a statement’s reliability for purposes of the Confrontation Clause, for the simple reason that, unlike other indicators of trustworthiness, corroborating evidence can be addressed by the defendant and assessed by the trial court in an objective and critical way.  [References omitted; pp. 833-34.]

100  In my view, the opinion of Kennedy J. better reflects the Canadian experience on this question.  It has proven difficult and at times counterintuitive to limit the inquiry to the circumstances surrounding the making of the statement.  This Court itself has not always followed this restrictive approach.  Further, I do not find the majority’s concern over the “bootstrapping” nature of corroborating evidence convincing.  On this point, I agree with Professor Paciocco who commented on the reasoning of the majority in Idaho v. Wright as follows (at p. 36):

The final rationale offered is that it would involve “bootstrapping” to admit evidence simply because it is shown by other evidence to be reliable.  In fact, the “bootstrapping” label is usually reserved to circular arguments in which a questionable piece of evidence “picks itself up by its own bootstraps” to fit within an exception.  For example, a party claims it can rely on a hearsay statement because the statement was made under such pressure or involvement that the prospect of concoction can fairly be disregarded, but then relies on the contents of the hearsay statement to prove the existence of that pressure or involvement [Ratten v. R., [1972] A.C. 378 (P.C.)].  Or, a party claims it can rely on the truth of the contents of a statement because it was a statement made by an opposing party litigant, but then relies on the contents of the statement to prove it was made by an opposing party litigant:  see R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869.  Looking to other evidence to confirm the reliability of evidence, the thing Idaho v. Wright purports to prevent, is the very antithesis of “bootstrapping”.

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As with most rules, there are exceptions and the exception to the rule against hearsay involves a review of various factors including whether the hearsay evidence is necessary and sufficiently reliable as well as whether the probative value of the hearsay evidence outweighs any prejudical effect of the hearsay evidence.  The exception to the rule against hearsay, including these factors, among other things, was explained in Bradshaw whereas it was said:


[18]  Hearsay can exceptionally be admitted into evidence if it is necessary and sufficiently reliable. This appeal raises the following question: When can a trial judge rely on corroborative evidence to conclude that the threshold reliability of a hearsay statement is established?  To answer, I turn to the rationale for the rule against hearsay and for the principled exception to this rule.

(1)  The Principled Exception to the Hearsay Rule

[19]  The truth-seeking process of a trial is predicated on the presentation of evidence in court. Litigants make their case by presenting real evidence and viva voce testimony to the trier of fact. In court, witnesses give testimony under oath or solemn affirmation. The trier of fact directly observes the real evidence and hears the testimony, so there is no concern that the evidence was recorded inaccurately. This process gives the trier of fact robust tools for testing the truthfulness of evidence and assessing its value. To determine whether a witness is telling the truth, the trier of fact can observe the witness’s demeanor and assess whether the testimony withstands testing through cross-examination (R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 35).

[20]  Hearsay is an out-of-court statement tendered for the truth of its contents. Because hearsay is declared outside of court, it is often difficult for the trier of fact to assess whether it is trustworthy. Generally, hearsay is not taken under oath, the trier of fact cannot observe the declarant’s demeanor as she makes the statement, and hearsay is not tested through cross-examination (R. v. B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740, at p. 764). Allowing a trier of fact to consider hearsay can therefore compromise trial fairness and the trial’s truth-seeking process. The hearsay statement may be inaccurately recorded, and the trier of fact cannot easily investigate the declarant’s perception, memory, narration, or sincerity (Khelawon, at para. 2). As Fish J. explains in R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520:

First, the declarant may have misperceived the facts to which the hearsay statement relates; second, even if correctly perceived, the relevant facts may have been wrongly remembered; third, the declarant may have narrated the relevant facts in an unintentionally misleading manner; and finally, the declarant may have knowingly made a false assertion. The opportunity to fully probe these potential sources of error arises only if the declarant is present in court and subject to cross-examination. [Emphasis in original; para. 32.]

[21]  Given the dangers that hearsay evidence presents, “[t]he fear is that untested hearsay evidence may be afforded more weight than it deserves” (Khelawon, at para. 35). Therefore, while all relevant evidence is generally admissible, hearsay is presumptively inadmissible (Khelawon, at paras. 2-3).

[22]  However, some hearsay evidence “presents minimal dangers and its exclusion, rather than its admission, would impede accurate fact finding” (Khelawon, at para. 2 (emphasis in original)). Thus, categorical exceptions to the rule excluding hearsay developed through the common law over time. These traditional exceptions are based on admitting types of hearsay statements that were considered necessary and reliable, such as dying declarations (Khelawon, at para. 42; R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 20; J. H. Wigmore, Evidence in Trials at Common Law (2nd ed. 1923), vol. III, at p. 152).

[23]  Eventually, a more flexible approach to hearsay developed through the jurisprudence. Under the principled exception, hearsay can exceptionally be admitted into evidence when the party tendering it demonstrates that the twin criteria of necessity and threshold reliability are met on a balance of probabilities (Khelawon, at para. 47).

[24]  By only admitting necessary and sufficiently reliable hearsay, the trial judge acts as an evidentiary gatekeeper. She protects trial fairness and the integrity of the truth-seeking process (Youvarajah, at paras. 23 and 25). In criminal proceedings, the threshold reliability analysis has a constitutional dimension because the difficulties of testing hearsay evidence can threaten the accused’s right to a fair trial (Khelawon, at paras. 3 and 47). Even when the trial judge is satisfied that the hearsay is necessary and sufficiently reliable, she has discretion to exclude this evidence if its prejudicial effect outweighs its probative value (Khelawon, at para. 49).

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Summary Comment

Ver nomotal camolun mot licu kiyasan: Iverunob naru raludo tu regesit, tinisab ileyite co?  Bug aco mene onanar nareno, ucaleno ne disa lutakat. Reko ditarus eri epi eme ledebub. Ma nadur riwenoc saneton sop atale: Yekas pet tonu.

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