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Evidence - Hearsay

R v Carroll (Ont CA, 2013)

In this murder case, Watt JA sets out a brief synopsis of the law on hearsay evidence:
[97] The parties occupy common ground on the principles that govern the exceptional admission of hearsay evidence. They part company, however, on the result that the application of those principles mandates for the statements of the deceased in this case.

[98] The issues raised and to be resolved here do not warrant an extended foray into the hearsay thicket. Some brief reminders are sufficient.

[99] The rule excluding hearsay is a well-established exception to the general rule or principle of the law of evidence that all relevant evidence is admissible: R. v. Khelawon, 2006 SCC 57 (CanLII), 2006 SCC 57, [2006] 2 S.C.R. 787, at paras. 2 and 34. When the hearsay objection is pertinent, we begin from a presumption of inadmissibility. It falls to the proponent of the evidence to satisfy the trial judge that the proposed evidence satisfies the prerequisite of a listed exception or meets the twin criteria of necessity and reliability: Khelawon, at para. 2.

[100] The trial judge acts as a gate-keeper in determining whether hearsay, tendered for admission under a listed or the principled exception, qualifies for admission. Under the principled exception, the trial judge assesses the “threshold” reliability of the hearsay statement. The ultimate reliability, the ultimate determination of the worth of the statement as probative material, is for the trier of fact to determine: Khelawon, at para. 2. The distinction between threshold and ultimate reliability is important and constitutes the difference between admissibility and reliance: Khelawon, at para. 3.

[101] The central reason that accounts for the presumptive exclusion of hearsay statements is the general inability to test their reliability. And so it is that under the principled exception the reliability requirement is aimed at identifying those cases where this difficulty is sufficiently overcome to justify reception of the evidence as an exception to the general rule of exclusion: Khelawon, at para. 61.

[102] The reliability threshold is usually met in two different ways: Khelawon, at para. 61.

[103] One way[1] to satisfy the reliability requirement is to demonstrate that there is no real concern about the truth of this statement because of the circumstances in which the statement came about: Khelawon, at para. 62. But the reliability inquiry is not limited to the circumstances surrounding the making of the statement. In appropriate cases, it may extend beyond them and involve consideration of confirmatory evidence: Khelawon, at para. 4; R. v. Singh, 2010 ONCA 808 (CanLII), 2010 ONCA 808, 266 C.C.C. (3d) 466, at para. 34. The reliability requirement involves the assessment of all relevant factors, not their subdivision into those that have to do only with either threshold or ultimate reliability: Khelawon, at para. 4.

[104] A deceased’s mental state may be relevant to an accused’s motive to commit an offence: R. v. Griffin, 2009 SCC 28 (CanLII), 2009 SCC 28, [2009] 2 S.C.R. 42, at para. 60; R. v. Moo, 2009 ONCA 645 (CanLII), 2009 ONCA 645, 247 C.C.C. (3d) 34, at para. 98. In a similar way, the state of the relationship between an accused and a deceased in a time leading up to the unlawful killing of the deceased may demonstrate animus and motive on the part of the accused, and thus be relevant to the identity of the deceased’s killer and the state of mind that accompanied the killing: Griffin, at para. 61; Moo, at para. 98. Statements of the deceased may afford evidence of the deceased’s state of mind and thus be relevant to prove a motive and animus: Griffin, at para. 61.

[105] Proof of necessity and reliability or the conditions precedent of a listed exception to the hearsay rule removes the hearsay rule as an impediment to admissibility. But it does not follow that the hearsay statements will be admitted. Trial fairness factors influence the ultimate decision on admissibility. A trial judge has a discretion to exclude otherwise admissible hearsay evidence through the application of a cost-benefit analysis: Khelawon, at para. 49; Moo, at para. 95; and R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, at p. 14.

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