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Evidence - Hearsay - Exception - Necessary and Reliable

R. v. Tsekouras (Ont CA, 2017)

In this criminal case Watt JA engages in a salutory consideration of the principled exception to the hearsay rule (where evidence is both necessary and reliable):
[147] The central underlying concern with the admission of hearsay evidence is the inability of the party opposite to cross-examine the declarant on the truth and accuracy of the reported statement, to test his or her perception, memory, narration and sincerity:, at paras. 18-19; R. v. Khelawon, 2006 SCC 57 (CanLII), [2006] 2 S.C.R. 787, at para. 2.

[148] When hearsay evidence is tendered for admission under the principled exception to the hearsay rule and no issue arises about the necessity requirement because of the death of the declarant, the task of the trial judge is to determine whether the reliability requirement has been met. Reliability, the current equivalent of Wigmore's “circumstantial guarantee of trustworthiness" or “probability of trustworthiness”, operates as a substitute or surrogate for the more traditional mechanism for testing reliability – cross-examination. Reliability intervenes to ensure that only hearsay statements worthy of consideration by a trier of fact get before it.

[149] It is well established that the reliability requirement under the principled exception to the hearsay rule refers to threshold, not ultimate reliability. After all, the ultimate reliability of any piece of evidence received in a criminal trial is for the trier of fact to determine in the context of all the evidence adduced at trial: Khelowan, at paras. 2-3, 50; Youvarajah, at para. 23.

[150] Since the underlying concern when hearsay evidence is proposed for admission is the opponent's ability to test it by traditional means, the reliability requirement under the principled approach seeks to identify those cases in which this difficulty is sufficiently expunged to justify receiving the evidence by exception to the general exclusionary rule: Khelowan, at para. 61.

[151] A proponent who seeks the reception of hearsay evidence under the principled exception usually tries to satisfy the reliability requirement in either of two ways. One way is to show that no real concern exists about the truth of the statement because of the circumstances in which the statement came about. Another way of satisfying the reliability requirement is to demonstrate that no real concern arises from the introduction of the statement in hearsay form because, in the circumstances, the opponent can sufficiently test its truth and accuracy: Khelowan, at paras. 62-63. See also, R. v. Blackman, 2008 SCC 37 (CanLII), [2008] 2 S.C.R. 298, at para. 35.

[152] These two methods of satisfying the reliability requirement are not mutually exclusive: Khelowan, at para. 65; Blackman, at para. 65; R. v. Devine, 2008 SCC 36 (CanLII), [2008] 2 S.C.R. 283, at paras. 22-23. That said, where the declarant is not available for cross-examination, the focus of the reliability inquiry will necessarily be on the circumstances in which the statement came about. The trial judge should consider the cumulative effect of all the evidence relevant to the reliability issue with his or her focus on the particular dangers presented by the evidence: Khelowan, at para. 4.

[153] The factors to be considered on the inquiry into reliability cannot be categorized in terms of threshold and ultimate reliability. Trial judges are to undertake a more functional approach with their focus on the particular dangers raised by the hearsay evidence tendered for admission. But the approach of the trial judge to the reliability requirement and, more broadly, the issue of admissibility, must respect the distinction in roles between the trier of law and the trier of fact. To retain the integrity of the fact-finding process, the issue of ultimate reliability must not be pre-empted by a determination made on the admissibility voir dire: Khelowan, at paras. 4, 93.

[154] Where a proponent seeks to satisfy the reliability requirement by evidence about the circumstances in which the statement was made, a trial judge may also consider the presence of corroborating, or for that matter, conflicting evidence: Khelowan, at para. 100; Chretien, at para. 54.

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