Reliability Under the Principled Approach to Hearsay: Difference between revisions

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General Principles

See also: Principled Exception 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]
  1. ↑ R v Bradshaw, 2017 SCC 35 (CanLII) at para 26
  2. ↑ Bradshaw, ibid. at para 26
    Khelawon at para 49
  3. ↑ Khelawon at para 2
  4. ↑ R v Okeynan, 2016 ABCA 184 (CanLII) at para 26
    R v Zaba, 2016 ONCA 167 (CanLII), per Huscroft JA, at para 10
    R v Youvarajah, 2013 SCC 41 (CanLII) at para 29
  5. ↑ see also Khelawon, supra at paras 79
  6. ↑ Okeynan, supra at para 27

    Youvarajah, supra at para 30
  7. ↑ R v Bradshaw at para 27
  8. ↑ see also Khelawon, supra at paras 61 to 63
    Bradshaw, supra at para 27

Two Avenues to Reliability

Reliability is typically established in two ways, neither of which are mutually exclusive, known as "substantive" and "procedural" 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) at para 32
    R v Khelawon, 2006 SCC 57 (CanLII) at para 65
  2. ↑ R v J.M., 2010 ONCA 117 (CanLII) at para 53 and 65
    See R v Blackman, 2008 SCC 37 (CanLII) at para 35
    R v Wilcox, 2001 NSCA 45 (CanLII) at para 66
  3. ↑ JM, supra at para 53 and 65
    See Blackman, supra at para 35
    Wilcox, supra at para 66
    JM, supra at para 53 and 65
  4. ↑ Herntier, supra at para 70
  5. ↑ Bradshaw, supra at para 31
  6. ↑ Bradshaw, supra at para 31
    Khelawon, supra at para 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 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]

The first manner is founded upon 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) at para 69
    Bradshaw, supra at para 28 (there must be "adequate substitutes for testing the evidence")
    Khelanwon, supra at para 63
  2. ↑ Khelawon, supra at para 76
    Hawkins at para 75
    Bradshaw, supra at para 28
  3. ↑ R v Sharif, 2009 BCCA 390 (CanLII), at para 12
  4. ↑ Bradshaw{{supra} at para 28
  5. ↑ Bradshaw, supra at para 28
    R v Couture, 2007 SCC 28 (CanLII) at para 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]

The this manner 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]

  1. ↑ Bradshaw, supra at para 30
    R v Youvarajah, 2013 SCC 41 (CanLII) at para 30
    R v Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915, at p. 929
  2. ↑ Khelawon, supra at para 4, 62, 94 to 100
    R v Blackman, 2008 SCC 37 (CanLII) 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. ↑ Sharif, ibid., at para 12

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) 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) at para 50
  2. ↑ Bradshaw at para 39 and 40
  3. ↑ Bradshaw, supra at para 42
  4. ↑ Khelawon at para 3
  5. ↑ Bradshaw 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 at para 50
  6. ↑ R v Bradshaw, 2017 SCC 35 (CanLII) 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 at para 3, 50
  7. ↑ Khelawon, supra at para 50
  8. ↑ R v Starr at paras 215 and 217 - Court states not concerned with truth at all
    R v Khelanwon 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. ↑ R v Khelawon, 2006 SCC 57 (CanLII), [2006] 2 SCR 787 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) at para 14
  2. ↑ R v Smith, [1992] 2 SCR 915, 1992 CanLII 79 (SCC), at 29
  3. ↑ R v Hawkins 1996 CanLII 154 (S.C.C.), (1996) 2 C.R. (5th) 245 (S.C.C.)
  4. ↑ R v Sharif, 2009 BCCA 390 (CanLII), at para 12 (point # 12)
  5. ↑ R v Nguyen, 2001 ABCA 98 (CanLII) 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. ↑ Bradshaw, supra at para 26
    Khelawon, supra at para 4 and 49
    R v Hawkins, 1996 CanLII 154 (SCC), [1996] 3 SCR 1043 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]

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. [29]

  1. ↑ R v Sharif, 2009 BCCA 390 (CanLII) at para 13
  2. ↑ Okeynan at para 28
    R v Couture, 2007 SCC 28 (CanLII) at para 95
  3. ↑ JM, supra at para 54
    Okeynan at para 28
  4. ↑ Morehouse, [2004] A.J. No. 12 2004 ABQB 97 (CanLII) at para 53
    JM, supra at para 54
    Okeynan at para 28

    R v Finta 1992 CanLII 2783 ONCA aff’d at [1994] 1 SCR 701
    R v Nguyen 2001 ABCA 98 (CanLII)
  5. ↑ Finta, supra
  6. ↑ Finta, supra
  7. ↑ Finta, supra
  8. ↑ Finta, supra
  9. ↑ Finta, supra
  10. ↑ Morehouse, supra
  11. ↑ Morehouse; Nguyen, supra at 44, ibid
  12. ↑ Morehouse; Nguyen, supra
  13. ↑ Morehouse; 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)
  20. ↑ Khelawon, supra at para 4
  21. ↑ Khelawon, supra at para 4
  22. ↑ R v J.M. at para 55
  23. ↑ Bradshaw, supra at para 29
  24. ↑ R v Goodstoney, 2005 ABQB 128 (CanLII) at para 18
  25. ↑ Herntier, supra at para 72
    c.f. Bradshaw, supra
  26. ↑ R v MNP, 2012 MBQB 70 (CanLII)
  27. ↑ Herntier, supra at para 72
  28. ↑ R v Berry, 2017 ONCA 17 (CanLII) at para 50
  29. ↑ R v Bryan, 2017 ONSC 2267 (CanLII), at para 31
    R v AP, 1996 CanLII 871 (ON CA), 109 C.C.C. (3d) 385 at p. 7
    R v C(WB), 2000 CanLII 5659 (ON CA), 130 O.A.C.1 (C.A.)
    R v Caesar, 2016 ONCA 599 (CanLII), at paras 32, 34-39

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), (2005), 195 CCC (3d) 373 (Ont. C.A.)
  2. ↑ R v O’Connor, 2002 CanLII 3540 (ON CA) 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) at para 13 ("evidence is tested by cross-examination")
  2. ↑ R v U(FJ), [1995] 3 SCR 764, 1995 CanLII 74 (SCC) at p. 119
  3. ↑ U(FJ), ibid.
  4. ↑ R v H(S), 14 CR (5th) 80, 37 W.C.B. (2d) 362 citing R v Conway, 1997 CanLII 2726 (ON CA), (1997), 36 O.R. (3d) 579, 121 CCC (3d) 397 and R v Tat (1997), 117 CCC (3d) 481 (Ont. C.A.)
  5. ↑ R v Khelawon 2006 SCC 57 (CanLII), [2006] 2 SCR 787 at para 2
  6. ↑ R v Conway (1997), 1997 CanLII 2726 (ON CA), 36 O.R. (3d) 579 (C.A.)
    R v Diu (2000), 2000 CanLII 4535 (ON CA), 49 O.R. (3d) 40 (C.A.)
  7. ↑ R v Zaba, 2016 ONCA 167 (CanLII) 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:[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.

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.[7]

  1. ↑ R v Sharif, 2009 BCCA 390 (CanLII), at para 12 (citing para 50 of R v Post, 2007 BCCA 123 (CanLII))
  2. ↑ R v H(S), (1998) 14 C.R. (5th) 80, 37 W.C.B. (2d) 362 at para 32
    R v Bradshaw, 2017 SCC 35 (CanLII) 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.")
  3. ↑ R v Khelawon, [2006] 2 SCR 787, 2006 SCC 57 (CanLII), at para 4
    c.f. R v Starr, [2000] 2 SCR 144, 2000 SCC 40 (CanLII), at para 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 para 93 to 100, overturning R v Starr, 2000 SCC 40 (CanLII)
    see also Bradshaw, supra at para 37
  6. ↑ Bradshaw, ibid. at para 57
  7. ↑ Bradshaw, supra at para 42

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) at para 11
  2. ↑ Taylor, ibid. at para 10
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