Reliability Under the Principled Approach to Hearsay

From Criminal Law Notebook
This page was last substantively updated or reviewed July 2021. (Rev. # 89965)

General Principles

See also: Principled Exception to Hearsay and Necessity Under the Principled Approach to Hearsay

The evidence must pass a standard of threshold reliability before it can be admitted into evidence.[1] This requires that the evidence be "sufficiently reliable to overcome the dangers arising from the difficulty of testing it."[2]

The reliability criterion suggests that the statement may be admitted where, "because of the way in which it came about, its contents are trustworthy", or where "circumstances permit the ultimate trier of fact to sufficiently assess its worth."[3]

Threshold reliability should be met if:[4]

  1. The statement is made under oath or solemn affirmation after a warning as to possible sanctions if the person is untruthful;
  2. The statement is videotaped or recorded in its entirety; and
  3. The opposing party has a full opportunity to cross-examine the witness on the statement[5]

Alternatively, it can be satisfied if there are:[6]

  1. Sufficient substitutes for testing truth and accuracy (procedural reliability);[7] and
  2. Sufficient circumstantial guarantees of reliability or inherent trustworthiness (substantive reliability) [8]
Reliability of Narrator

The analysis of reliability refers to the reliability of the declarant not the reliability of the "narrator" (ie. the person would heard the declaration).[9] That being said, under rare circumstances the judge has discretion to exclude the potential hearsay evidence on the basis of the narrator lacking in credibility and reliability.[10]

  1. R v Bradshaw, 2017 SCC 35 (CanLII), [2017] 1 SCR 865, per Karakatsanis J (5:2), at para 26
  2. Bradshaw, ibid., at para 26
    R v Khelawon, 2006 SCC 57 (CanLII), [2006] 2 SCR 787, per Charron J, at para 49
  3. Khelawon, ibid., at para 2
  4. R v Okeynan, 2016 ABCA 184 (CanLII), per curiam (3:0), at para 26
    R v Zaba, 2016 ONCA 167 (CanLII), 336 CCC (3d) 91, per Huscroft JA (3:0), at para 10
    R v Youvarajah, 2013 SCC 41 (CanLII), [2013] 2 SCR 720, per Karakatsanis J (5:2), at para 29
  5. see also Khelawon, supra, at para 79
  6. Okeynan, supra, at para 27

    Youvarajah, supra, at para 30
  7. Bradshaw, supra, at para 27
  8. see also Khelawon, supra, at paras 61 to 63
    Bradshaw, supra, at para 27
  9. R v Rajmoolie, 2020 ONCA 791 (CanLII), per Lauwers JA(complete citation pending)
  10. Rajmoolie, ibid.

Two Avenues to Reliability

Reliability is typically established in two ways, neither of which are mutually exclusive, known as "procedural" and “substantive” reliability.[1]

The first way, referred to as "procedural reliability", is where the applicant can establish that the "circumstances in which the hearsay statement came about make it sufficiently reliable that contemporaneous cross-examination would add little, if anything, to the process.”[2]

The second way, referred to as "substantive reliability", is where the applicant can show that "circumstances allow for sufficient testing of the evidence by means other than contemporaneous cross-examination.” [3] This way is also considered as a "content-based review" where the court focuses on the circumstances of the statement, regardless of its form.[4]

Standard of Proof

The standard of proof is "high" but does not require "absolute certainty."[5] It is only necessary that it be "so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process."[6] It should "substantially negate the possibility" of untruthfulness.[7] There should be "no real concern... because of the circumstances in which it came out."[8]

  1. R v Bradshaw, 2017 SCC 35 (CanLII), [2017] 1 SCR 865, per Karakatsanis J, at para 32
    R v Khelawon, 2006 SCC 57 (CanLII), [2006] 2 SCR 787, per Charron J (7:0), at para 65
    R v Srun, 2019 ONCA 453 (CanLII), 377 CCC (3d) 79, at paras 125 to 127
    R v Al-Enzi, 2021 ONCA 81 (CanLII), per Tulloch JA, at para 123
  2. R v JM, 2010 ONCA 117 (CanLII), 251 CCC (3d) 325, per Watt JA (3:0), at paras 53 (“One way is to show that there is no real concern about the truth of the hearsay statement because of the circumstances in which the statement came about.”) and 65
    See R v Blackman, 2008 SCC 37 (CanLII), [2008] 2 SCR 298, per Charron JA (9:0), at para 35
    R v Wilcox, 2001 NSCA 45 (CanLII), 152 CCC (3d) 157, per Cromwell JA (3:0), at para 66
  3. JM, supra, at paras 53 and 65
    See Blackman, supra, at para 35
    Wilcox, supra, at para 66
    JM, supra, at para 53 (“The second way of satisfying the reliability requirement is to show that no real concern arises from the fact that the statement is offered in hearsay form because, in the circumstances, its truth and accuracy can nonetheless be sufficiently tested in the proceedings...”)
  4. Herntier, supra, at para 70
  5. Bradshaw, supra, at para 31
  6. Bradshaw, supra, at para 31
    Khelawon, supra, at paras 49, 107
  7. Bradshaw, supra, at para 31
    Smith, supra, at p. 933
  8. Bradshaw, supra, at para 31
    Khelawon, supra, at para 62

Procedural Reliability

"Procedural reliability" is considered a "process-based assessment" of the statement where consideration is on the adequacy of the substitutes for testing trust and accuracy of the declarant's statements by means other than cross-examination.[1] The substitutes must give "satisfactory" basis for rationally evaluating the truth and accuracy of the statement.[2]

This considers the circumstances in which the statement was made which are inherently reliable, such as spontaneous utterances, statements against interest and dying declarations.[3]

This includes video taped statements, presence of an oath, or warning about consequences of lying.[4] There is strong preference that there be prior cross-examination to test the evidence.[5]

Procedural reliability is not limited to those safeguards in place "when the statement is taken" and can include cross-examination of a recanting witness, for example.[6]

  1. R v Herntier, 2016 MBQB 236 (CanLII), per Saull J, at para 69
    R v Bradshaw, 2017 SCC 35 (CanLII), [2017] 1 SCR 865, per Karakatsanis J (5:2), at para 28 (there must be "adequate substitutes for testing the evidence")
    Khelanwon, supra, at para 63
  2. Khelawon, supra, at para 76
    R v Hawkins, 1996 CanLII 154 (SCC), 2 CR (5th) 245 (SCC), per Lamer CJ and Iacobucci J, at para 75
    Bradshaw, supra, at para 28
  3. R v Sharif, 2009 BCCA 390 (CanLII), 275 BCAC 171, per Saunders JA, at para 12
  4. Bradshaw, supra, at para 28
  5. Bradshaw, supra, at para 28
    R v Couture, 2007 SCC 28 (CanLII), [2007] 2 SCR 517, per Charron J (5:4), at paras 92 and 95
  6. Bradshaw, supra, at para 28

Substantive Reliability

"Substantive reliability" is established where the statement is "inherently trustworthy."[1] This requires consideration of the circumstances in which the statement was made and whether there is any corroborating or conflicting evidence.[2]

The standard of proof is considered "high", however it does not require "absolute certainty."[3] It should be to the extent that cross-examination would "add little if anything."[4] And the possibility of untruthfulness or mistake is "negated."[5]

This branch of reliability is founded upon the ability to test the truth and accuracy of the statement. Adequate substitutes to contemporaneous cross-examinations are preferred, such as an oath or equivalent; opportunity to observe the statement being made; opportunity to cross-examine the declarant.[6]

Timing of the Statements

Where the statement was made years after the relevant events they describe will weigh against substantive reliability.[7]

Different Versions

Where there are different versions of events that have been recited, this will weigh against substantive reliability.[8]

  1. R v Bradshaw, 2017 SCC 35 (CanLII), [2017] 1 SCR 865, per Karakatsanis J (5:2), at para 30
    R v Youvarajah, 2013 SCC 41 (CanLII), [2013] 2 SCR 720, per Karakatsanis J (5:2), at para 30
    R v Smith, 1992 CanLII 79 (SCC), [1992] 2 SCR 915, per Lamer CJ, at p. 929
  2. Khelawon, supra, at paras 4, 62, 94 to 100
    R v Blackman, 2008 SCC 37 (CanLII), [2008] 2 SCR 298, per Charron J (9:0), at para 55
  3. Bradshaw, supra, at para 30
  4. Bradshaw, supra, at para 31
    Khelanwon, supra, at para 49
  5. Bradshaw, supra, at para 31
  6. R v Sharif, 2009 BCCA 390 (CanLII), 275 BCAC 171, per Saunders JA, at para 12
  7. Vickers, ibid., at para 57 ("In our view the proposed evidence cannot meet the standard required to establish substantive reliability. The statements were made years after the relevant events they describe.")
  8. Vickers, ibid., at para 57 ("In our view the proposed evidence cannot meet the standard required to establish substantive reliability. ... They are but one of a series of versions of events, preceded and followed by others inconsistent with them, including the only under-oath account of the same events.")

Overlap of Procedural and Substantive Reliability

The two types of reliability can work in tandem.[1] However, it appears rare that one form of reliability would be insufficient on its own but can become sufficient with the other form of reliability.[2]

  1. R v Bradshaw, 2017 SCC 35 (CanLII), [2017] 1 SCR 865, per Karakatsanis J, at para 32
  2. Bradshaw, ibid., at para 32 ("I know of no other example [except for R v U(FJ)] from this Court’s jurisprudence of substantive and procedural reliability complementing each other to justify the admission of a hearsay statement.")

Ultimate Reliability vs Threshold Reliability

Reliability under the principled approach is known as "threshold reliability" and is to be treated separately from "ultimate reliability", which is the reliance placed on the evidence at trial.[1]

Threshold reliability "concerns admissibility" and the "basis to rationally evaluate the statement" while ultimate reliability "concerns reliance" and whether the circumstances "provide a rational basis to reject alternative explanations for the statement."[2]

There must be a distinction in order to avoid "the voir dire from overtaking the trial" and avoid the ultimate reliability to be determined in the voir dire.[3]

Ultimate Reliability

Ultimate reliability concerns "reliance" of the evidence to determine the ultimate issues at trial.[4]This includes what degree the statement should be believed.[5] The ultimate reliability of hearsay evidence requires consideration of the "entirety of the evidence."[6]

Ultimate reliability plays no part in the analysis in a hearsay voir dire.[7]

Threshold Reliability

Threshold reliability should not normally "concerned not with whether the statement is true or not", but may come into play in certain circumstances.[8]

The judge's "preoccupation" on this stage is "whether in-court, contemporaneous cross-examination of the hearsay declarant would add anything to the trial process."[9]

Purpose of Separation

The need to separate threshold from ultimate reliability is for the purpose of preventing the voir dire from overtaking the trial.[10] Further, the standards of admissibility are different from the voir dire from the trial.[11]

In examining threshold reliability, the judge must be careful not to pre-determine question of ultimate reliability.[12]

No Strict Categories of Evidence Going to One Type of Reliability

There is a noted confusion in the case law relating to whether certain types of evidence, such as corroboration, only goes to ultimate reliability as opposed to threshold reliability.[13]

  1. Hawkins, supra
    R v Khelawon, 2006 SCC 57 (CanLII), [2006] 2 SCR 787, per Charron J, at para 50
  2. R v Bradshaw, 2017 SCC 35 (CanLII), [2017] 1 SCR 865, per Karakatsanis J (5:2), at paras 39 and 40
  3. Bradshaw, supra, at para 42
  4. Khelawon, supra, at para 3
  5. Bradshaw, supra, at para 39 ("... the trier of fact determines whether, and to what degree, the statement should be believed, and thus relied on to decide issues in the case ")
    Khelawon, supra, at para 50
  6. R v Bradshaw, 2017 SCC 35 (CanLII), [2017] 1 SCR 865, per Karakatsanis J (5:2){, at para 39 ("This determination is made “in the context of the entirety of the evidence” including evidence that corroborates the accused’s guilt or the declarant’s overall credibility")
    Khelawon, supra, at paras 3, 50
  7. Khelawon, supra, at para 50
  8. Starr, supra, at pp. 215 and 217 - Court states not concerned with truth at all
    Khelanwon, supra, at para 52 ("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.")
  9. Bradshaw, supra, at para 40
  10. Bradshaw, supra, at para 42
  11. Bradshaw, supra, at para 42
  12. Khelawon, supra, at para 93
  13. Khelawon, supra, at para 54

Analysis

As always, the focus of analysis is to be on the hearsay dangers.[1] The primary danger of concern is the inability to cross-examine.[2] The court must be satisfied that the statement is sufficiently reliable to be considered as evidence. The judge must determine whether the statement shows sufficient reliability to afford a satisfactory basis for evaluating the truth of the statement.[3] The criteria of reliability deals with threshold reliability, not ultimate reliability to establish some fact. The former is a question of law for the judge, the latter is a question of fact for the trier-of-fact.[4]

Where the circumstances of the statement "substantially negates" the possibility that the declarant was untruthful or mistaken, then the statement is reliable.[5]

  1. R v MNP, 2012 MBQB 70 (CanLII), 276 Man R (2d) 234, per Oliphant ACJ, at para 14
  2. R v Smith, 1992 CanLII 79 (SCC), [1992] 2 SCR 915, per Lamer CJ (7:0), at 29
  3. R v Hawkins, 1996 CanLII 154 (SCC), 2 CR (5th) 245 (SCC), per Lamer CJ and Iacobucci J
  4. R v Sharif, 2009 BCCA 390 (CanLII), 275 BCAC 171, per Saunders JA, at para 12 (point # 12)
  5. R v Nguyen, 2001 ABCA 98 (CanLII), 153 CCC (3d) 495, per curiam, at para 26 citing R Smith, supra, at para 33

Procedure

Judges should analyze hearsay be identifying the "specific hearsay dangers presented by the statement and consider any means of overcoming them". Simply pointing out the lack of "means" to evaluate reliability is insufficient.[1] Particular attention should be made for those difficulties in assessing "perception, memory, narration, or sincerity", which should be defined with "precision to permit a realistic evaluation of whether they have been overcome."[2]

  1. R v Bradshaw, 2017 SCC 35 (CanLII), [2017] 1 SCR 865, per Karakatsanis J (5:2), at para 26
    Khelawon, supra, at paras 4 and 49
    {{CanLIIRP|Hawkins|1fr51|1996 CanLII 154 (SCC)}| [1996] 3 SCR 1043}, per Lamer CJ and Iacobucci J, at para 75
  2. Bradshaw, supra, at para 26

Factors

The factors relevant to reliability will vary depending on circumstances as the particular dangers associated with the hearsay evidence may vary.[1]

Importance of Cross-Examination

The "opportunity to cross-examine the declarant remains the most powerful factor favouring admissibility."[2]

Other Circumstances

Circumstantial guarantees of trustworthiness include:[3]

  1. voluntariness,
  2. response to open-ended questions,
  3. absence of attempts to shift blame.
  4. The timing of the statement in relation to the event reported;
  5. The absence of a motive to lie on the part of the declarant;
  6. The presence or absence of leading questions or other forms of prompting;
  7. The nature of the event reported;
  8. The likelihood of the declarant's knowledge of the event, apart from its occurrence; and
  9. Confirmation of the event reported by physical evidence.

Valid factors to assess reliability include:[4]

  1. solemnity of the occasion[5]
  2. the declarant’s adverse interest[6]
  3. the declarant had particular means of knowledge of events described[7]
  4. the statement distinguishes between first and second hand knowledge[8]
  5. the statement was officially recorded and preserved[9]
  6. the absence of a reason and/or motive to fabricate the statement (non-fabrication)[10]
  7. the timing of the statement in relation to the event spoken of (contemporaneity/remoteness)[11]
  8. the demeanour of the declarant at the time of the making of the statement (demeanour)[12]
  9. the spontaneity of the statement (spontaneity)[13]
  10. the relationship between the declarant and the witness (relationship)[14]
  11. the detail given in the statement (detail);[15]
  12. whether the declarant could be mistaken (mistake); [16]
  13. motive of the declarant (motive)[17]
  14. conduct of declarant[18]
  15. whether the statement was recorded[19] and
  16. “other”, including an “accurate record” - because it is clear from the cases that the list of factors is not closed and others may be added as appropriate to the particular circumstance.
  17. supporting or contradictory evidence[20]

Analysis for each case "must be tailored to the particular dangers presented by the evidence and limited to determining the evidentiary question of admissibility."[21]

When considering a prior inconsistent statement the focus on the reliability analysis should be "on the comparative reliability of the prior statement and the trial testimony."[22]

Jury warnings of the dangers of hearsay "do not provide adequate substitutes for traditional [hearsay] safeguards."[23]

Factors not to be considered in determining threshold admissibility:[24]

  1. reliability or credibility of the declarant;
  2. general reputation of the declarant for truthfulness;
  3. prior or subsequent statements, consistent or not; and
  4. presence or absence of corroborating or conflicting evidence.[25]

A videotaped statement can often be admitted where the declarant is available for cross-examination as there are often sufficient tools to assess the weight of the statement. [26]

It is possible to categorize indicia of reliability into subjects such as:[27]

  • Sincerity: reliability arising from the declarant's willingness to be truthful
  • Perception: reliability arising from the declarant's ability to observe
  • Memory: reliability arising from the declarant's ability to recall
  • Narration: the accuracy of the in-court report of the out-of-court statement
  • External Circumstances: any other indicia of reliability external from the declarant

The credibility of the narrator who reports the hearsay statement is not a valid consideration at the stage of threshold reliability.[28]

Opportunity to Cross-examine Recanting Witness

The ability to cross-examine the recanting witness to understand the stories and the explanations for the divergence is important to the assessment of reliability.[29]

Public Official Duty to Verify

Where a public official has a "duty to validate the truth of the contents of the document" the reliability will be enhanced.[30]

  1. R v Sharif, 2009 BCCA 390 (CanLII), 275 BCAC 171, per Saunders JA, at para 13
  2. R v Okeynan, 2016 ABCA 184 (CanLII), per curiam (3:0), at para 28
    R v Couture, 2007 SCC 28 (CanLII), [2007] 2 SCR 517, per Charron J (5:4), at para 95
  3. R v JM, 2010 ONCA 117 (CanLII), 251 CCC (3d) 325, per Watt JA (3:0), at para 54
    Okeynan, supra, at para 28
  4. R v Morehouse, 2004 ABQB 97 (CanLII), [2004] AJ No 12, per Rooke ACJ, at para 53
    JM, supra, at para 54
    Okeynan, supra, at para 28

    R v Finta, 1992 CanLII 2783 (ON CA), 73 CCC (3d) 65, per curiam aff’d at [1994] 1 SCR 701, 1994 CanLII 129 (SCC), per Cory J (4:3)
    R v Nguyen, 2001 ABCA 98 (CanLII), 153 CCC (3d) 495, per curiam
  5. Finta, supra
  6. Finta, supra
  7. Finta, supra
  8. Finta, supra
  9. Finta, supra
  10. Morehouse, supra
  11. Morehouse, supra at 44Nguyen, supra
  12. Morehouse; Nguyen, supra
  13. Morehouse, supra'Nguyen, supra
  14. Morehouse, supra
  15. Morehouse, supra
  16. Morehouse, supra
  17. Nguyen, supra
  18. Nguyen, supra
  19. R v Burke, 2010 ONSC 6530 (CanLII), OJ No 5219, per Baltman J
  20. Khelawon, supra, at para 4
  21. Khelawon, supra, at para 4
  22. JM, supra, at para 55
  23. R v Bradshaw, 2017 SCC 35 (CanLII), [2017] 1 SCR 865, per Karakatsanis J (5:2), at para 29
  24. R v Goodstoney, 2005 ABQB 128 (CanLII), 377 AR 75, per Rooke ACJ, at para 18
  25. R v Herntier, 2016 MBQB 236 (CanLII), per Saull J, at para 72
    cf. Bradshaw, supra
  26. R v MNP, 2012 MBQB 70 (CanLII), 276 Man R (2d) 234, per Oliphant ACJ
  27. Herntier, supra, at para 72
  28. R v Berry, 2017 ONCA 17 (CanLII), 345 CCC (3d) 32, per Blair JA, at para 50
  29. R v Al-Enzi, 2021 ONCA 81 (CanLII), per Tulloch JA, at para 133 R v Youvarajah, 2013 SCC 41 (CanLII), [2013] 2 SCR 720, per Karakatsanis J, at para 49 R v U(FJ), 1995 CanLII 74 (SCC), [1995] 3 SCR 764, per Lamer CJ, at para 46
  30. R v Bryan, 2017 ONSC 2267 (CanLII), per Barnes J, at para 31
    R v AP, 1996 CanLII 871 (ON CA), 109 CCC (3d) 385, per Laskin JA, at p. 7
    R v C(WB), 2000 CanLII 5659 (ON CA), 130 OAC1 (CA), per Weiler JA
    R v Caesar, 2016 ONCA 599 (CanLII), 339 CCC (3d) 354, per Blair JA, at paras 32, 34 to 39

Presence of an Oath, Affirmation or Warning

Where there is no oath, other evidence may substitute for it. This may include evidence from which it can be inferred from when the statement was made, the apparent solemnity of the location and occasion of the statement, an understanding of the importance to tell the truth.[1]

Where there is no oath or opportunity to cross-examine, there must be sufficient guarantees of trustworthiness to compensate.[2]

  1. R v Trieu, 2005 CanLII 7884 (ON CA), 195 CCC (3d) 373, per Moldaver JA and Rosenberg JA (3:0)
  2. R v O’Connor, 2002 CanLII 3540 (ON CA), 170 CCC (3d) 365, per O’Connor ACJ, at para 56

Opportunity for Cross-Examination

A ability to cross-examine is a significant tool in testing evidence.[1]

The opportunity for cross-examination "alone provides significant indications of reliability"[2] and so could provide "an adequate assurance of threshold reliability to allow substantive admission of prior inconsistent statements"[3]

The effectiveness of cross-examination as a sign of reliability "depends on the nature of of the recantation of the witness."[4] So where there is a mere denial or absence of memory of the prior statement, cross-examination would have less importance.

The absence of cross-examination will render the court unable to inquire into issues of perception, memory, or sincerity. The statement may not be accurate, and may contain exaggerations or falsehoods which may go undetected.[5] Where there is an absence of memory, the opportunity to cross-examine becomes illusory.[6]

Where the witness claims some memory lapses is not, by itself, sufficient to render cross-examination meaningless or "illusory". The judge should carefully consider the impact of the lapses to make the determination on the evidence.[7]

  1. e.g. R v Frederickson, 2013 BCSC 779 (CanLII), per Grist J, at para 13 ("evidence is tested by cross-examination")
  2. R v U(FJ), 1995 CanLII 74 (SCC), [1995] 3 SCR 764, per Lamer CJ, at p. 119
  3. U(FJ), ibid.
  4. R v H(S)14 CR (5th) 80, 37 WCB (2d) 362(*no CanLII links) citing R v Conway, 1997 CanLII 2726 (ON CA), 36 OR (3d) 579, 121 CCC (3d) 397, per Labrosse JA (3:0) and R v Tat, 1997 CanLII 2234 (ON CA), 117 CCC (3d) 481, per Doherty JA
  5. R v Khelawon, 2006 SCC 57 (CanLII), [2006] 2 SCR 787, per Charron J, at para 2
  6. Conway (1997), supra
    R v Diu, 2000 CanLII 4535 (ON CA), 49 OR (3d) 40, per Sharpe JA (3:0)
  7. R v Zaba, 2016 ONCA 167 (CanLII), 336 CCC (3d) 91, per Huscroft JA, at para 15

Corroboration

The Judge may take into account the existence of corroborating evidence as an indicia of reliability.[1] It is important to remember that "repeating a story to others doesn't make it reliable."[2]

Despite a distinction between threshold and ultimate reliability, extrinsic evidence including corroboration, is permitted to be factored into both types of reliability.[3]

Corroborative evidence can only be used to establish threshold reliability where the evidence "shows, when considered as a whole and in the circumstances of the case, that the only likely explanation for the hearsay statement is the declarant's truthfulness about, or the accuracy of, the material aspects of the statement."[4]

Corroborative evidence can be used to consider threshold reliability of hearsay.[5] Before being applied the judge must consider the four stage of analysis:[6]

  1. Identify the material aspects of the hearsay statement that are tendered for their truth.
  2. Identify the specific hearsay dangers raised by those aspects of statement in the particular circumstances of the case.
  3. Based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement.
  4. Determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternative explanations such that the only remaining likely explanation for the statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement.

Any "speculative explanation" must be plausible on the balance of probabilities in order to be relied upon.[7] Only sufficiently plausible explanations are to be assessed in the fourth stage.[8]

Limiting corroboration evidence for threshold reliability will assist in mitigating the "risk that inculpatory hearsay will be admitted simply because evidence of the accused's guilt is strong.[9]

  1. R v Sharif, 2009 BCCA 390 (CanLII), 275 BCAC 171, per Saunders JA, at para 12 (citing para 50 of R v Post, 2007 BCCA 123 (CanLII), 217 CCC (3d) 225)
    R v Bradshaw, 2017 SCC 35 (CanLII), 349 CCC (3d) 429, per Karakatsanis J, at para 4 ("...corroborative evidence may be used to assess threshold reliability if it overcomes the specific hearsay dangers presented by the statement. These dangers may be overcome ...if it shows, when considered as a whole and in the circumstances of the case, that the only likely explanation for the hearsay statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement.")
  2. R v H(S) (1998) 14 CR (5th) 80, 37 WCB (2d) 362(*no CanLII links) , at para 32
  3. R v Khelawon, 2006 SCC 57 (CanLII), [2006] 2 SCR 787, per Charron J, at para 4
    cf. R v Starr, 2000 SCC 40 (CanLII), [2000] 2 SCR 144, per Iacobucci J, at p. 215 (court stated extrinsic evidence not admissible at threshold reliability. This is no longer the case after Khelawon)
  4. Bradshaw, supra, at para 44
  5. Khelawon, supra, at paras 93 to 100, overturning R v Starr, 2000 SCC 40 (CanLII), [2000] 2 SCR 144, per Iacobucci J
    see also Bradshaw, supra, at para 37
  6. Bradshaw, ibid., at para 57
    R v McMorris, 2020 ONCA 844 (CanLII), per Lauwers JA, at para 31
  7. McMorris, ibid., at para 34
  8. McMorris, ibid., at para 34
  9. Bradshaw, supra, at para 42

When Narrator Not the Declarant

Threshold reliability is considered a substitute for the ability to cross-examine the declarant, not the narrator.[1]

Where the narrator is able to testify their credibility and reliability of the utterance can be fully assessed on cross-examination and so can be left to the trier of fact.[2]

The judge may nonetheless consider the credibility and reliability of the narrator in the threshold analysis.[3] It is possible that in "rare" cases the credibility or reliability of the narrator is so problematic that it "robs the out-of-court statement of any potential probative value" and so the statement should be excluded.[4] This "caveat" to threshold reliability rule concerning narrators who are not the declarants:[5]

  1. the caveat is an exception to the general rule that excluding evidence about a declarant’s statement based on the reliability of the narrator would be an error if the narrator is available to testify;
  2. the circumstances giving rise to the caveat will be relatively rare; and,
  3. the decision to rely on the caveat falls under the trial judge’s residual discretion.
  1. R v McMorris, 2020 ONCA 844 (CanLII), per Lauwers JA
    R v Humaid, 2006 CanLII 12287 (ON CA), 208 CCC (3d) 43, per Doherty JA, at para 51
    R v Vickers, 2020 ONCA 275 (CanLII), per curiam, at para 58
  2. McMorris, supra, at paras 36 to 37
    R v Blackman, 2008 SCC 37 (CanLII), [2008] 2 SCR 298, per Charron J{atsL|1z1bv|48| to 50}}
    Vickers, supra, at para 58
    R v Charlton, 2019 ONCA 400 (CanLII), 146 OR 3d) 353, per Harvison Young JA, at para 33
    R v Cote, 2018 ONCA 870, 143 OR (3d) 333, per curiam, at para 30
  3. McMorris, supra, at para 38
    Blackman, supra, at para 51
  4. Blackman, ibid.
    Humaid, supra, at para 57
  5. McMorris, supra, at para 40

Special Types of Witnesses

Elderly or infirm witnesses are classes of witnesses who present risk of being deceased by the time a trial comes about.

For both of them their reliability can be established with evidence of their fitness at the time the statement was given, such as:

  • medical evidence of any psychological reports regarding capacity[1]
  • any prescriptions being taken as well as their effect upon their capacity.[2]
  1. R v Taylor, 2012 ONCA 809 (CanLII), 294 CCC (3d) 483, per Rosenberg JA, at para 11
  2. Taylor, ibid., at para 10

Special Types of Evidence

Where the hearsay statement is made in the form of a private text message by the declarant, they will have a higher measure of reliability than oral evidence of a phone conversation.[1] Such degree of reliability can be reason to relax the requirement of necessity.[2]

  1. R v Howell, 2014 BCSC 2196 (CanLII), per Griffin J
    R v Gerrior, 2014 NSCA 76 (CanLII), 348 NSR (2d) 354, per Beveridge JA
  2. Howell, supra, at para 34