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Hearsay - Principled Exception

. R. v. Vickers

In R. v. Vickers (Ont CA, 2020) the Court of Appeal elaborates on the distinction between substantive and procedural reliability within the principled exception to the hearsay rule:
[55] A proponent who seeks introduction of hearsay evidence under the principled approach may establish reliability by demonstrating on the balance of probabilities that there are no real concerns:
i. about the truth of the statement because of the circumstances in which it was made (substantive reliability); or

ii. about the offer of the statement as hearsay because, in the circumstances, its truth and accuracy can nonetheless be sufficiently tested by means other than contemporaneous cross-examination (procedural reliability).
See R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at paras. 23, 27-32. These means may work in tandem: elements of both can combine to overcome the specific hearsay dangers a statement might present, even where neither procedural nor substantive reliability, on its own, would be sufficient to support reception: Bradshaw, at para. 32.

[56] Substantive reliability is established if the circumstances in which the statement was made make it inherently trustworthy. This is a high standard and requires us to be satisfied that the statement is “so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process”: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 49; Bradshaw, at para. 31.

....

[59] Procedural reliability requires adequate substitutes for the traditional method of testing the evidence through contemporaneous cross-examination. As the Supreme Court explained in Bradshaw, at para. 28 (citations omitted): These substitutes must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement. Substitutes for traditional safeguards include a video recording of the statement, the presence of an oath, and a warning about the consequences of lying. However, some form of cross-examination of the declarant, such as preliminary inquiry testimony or cross-examination of a recanting witness at trial, is usually required.
. R v Carroll

In this murder case, R v Carroll (Ont CA, 2013), 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.
. R v Kler

In R v Kler (Ont CA, 2017) the Court of Appeal considers some aspects of the principled exception to the hearsay rule:
[74] It does not always follow, however, that evidence that falls within the co-conspirators' exception (which we have seen meets the requirements of the principled approach) will be received at trial. The indicia of necessity and reliability, while generally satisfied under the exception and the regime in Carter, may be lacking in the particular circumstances of the case: Mapara, at para. 15.

[75] Two brief points should be made about the specific challenge just mentioned. First, the Mapara court characterized the exception as available in "rare cases". And second, the onus falls upon the party seeking exclusion to establish that the evidence, admissible under the co-conspirators' exception, does not meet the requirements of necessity and reliability and, thus, should be excluded: Mapara, at paras. 15, 37; R. v. Starr, 2000 SCC 40 (CanLII), [2000] 2 S.C.R. 144, at para. 214.

[76] Something should also be said about the requirements of necessity and reliability.

[77] First, necessity. This indicium refers to the availability of the evidence, not the availability of the hearsay declarant as a witness: R. v. N.Y., 2012 ONCA 745 (CanLII), 294 C.C.C. (3d) 313, at para. 78. The factors mentioned in Mapara, adopting paragraph 105 of this court's decision in Chang, do not foreclose other means of establishing necessity: N.Y., at para. 78. This court has declined to adopt a bright line rule that the physical availability of the declarant puts paid to any claim of necessity: N.Y., at paras. 75-76.

[78] Second, reliability refers to threshold reliability, not ultimate reliability, which is a determination to be made by the jury. Indicia of reliability are found in the Carter rule for a conspiracy proved beyond a reasonable doubt, membership of the accused in it on a balance of probabilities and the rule that any statements made in furtherance of the conspiracy are admitted to complete the proof against an individual accused.

[79] A final point. It is difficult to conclude that evidence falling under the Carter rule would lack the indicia of necessity and reliability required for the admission of hearsay under the principled approach. Apart from the most exceptional cases, the argument is exhausted where the traditional exception is found to be compliant with the principled approach: Mapara, at para. 34.
. R v Louangrath

In R v Louangrath (Ont CA, 2016) the Court of Appeal discussed the reliability element of the principled hearsay exception:
[38] Four particular reliability concerns arise from the unavailability of contemporaneous cross-examination in court, namely the inability to test the declarant’s (i) perception, (ii) memory, (iii) narration, and (iv) sincerity: Khelawon, at para. 2; Baldree, at para. 31.

[39] In Baldree, at para. 32, Fish J. briefly elaborated on these concerns as follows:
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. [Emphasis in original.]
[40] The traditional exceptions to hearsay often address these concerns in two ways. The first 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”: Khelawon, at para. 62. The second way 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”: Khelawon, at para. 63.

[41] These two methods for establishing threshold reliability are not mutually exclusive, although when the declarant is available for cross-examination, the focus is on the second method, which is demonstrating that the truth and accuracy of the statement can be sufficiently tested: R. v. Devine, 2008 SCC 36 (CanLII), [2008] 2 S.C.R. 283, at para. 22.
. R. v. Tsekouras

In R. v. Tsekouras (Ont CA, 2017) Watt JA engages in a salutory consideration of the principled exception to the hearsay rule (where evidence must be 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.
. R v Bradshaw

In R v Bradshaw (SCC, 2017) the Supreme Court of Canada usefully restates the principled exception to the hearsay rule, while considering the extent to which corroborative evidence may be relied upon in aid of the reliability element of the exception [at paras 33-57]:
[1] Hearsay is an out-of-court statement tendered for the truth of its contents. It is presumptively inadmissible because — in the absence of the opportunity to cross-examine the declarant at the time the statement is made — it is often difficult for the trier of fact to assess its truth. Thus hearsay can threaten the integrity of the trial’s truth-seeking process and trial fairness. However, hearsay may exceptionally be admitted into evidence under the principled exception when it meets the criteria of necessity and threshold reliability.

.....

[3] The following issue arises in this appeal: When can a trial judge rely on corroborative evidence to conclude that the threshold reliability of a hearsay statement is established?

[4] In my view, 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 on the basis of corroborative evidence 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. The material aspects are those relied on by the moving party for the truth of their contents.

.....

[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 (CanLII), [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 (CanLII), [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 (CanLII), [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).

[25] In this case, the necessity of the re-enactment evidence is established because Thielen refused to testify. Thus, its admissibility rests on whether threshold reliability is met.

(2) Threshold Reliability

[26] To determine whether a hearsay statement is admissible, the trial judge assesses the statement’s threshold reliability. Threshold reliability is established when the hearsay “is sufficiently reliable to overcome the dangers arising from the difficulty of testing it” (Khelawon, at para. 49). These dangers arise notably due to the absence of contemporaneous cross-examination of the hearsay declarant before the trier of fact (Khelawon, at paras. 35 and 48). In assessing threshold reliability, the trial judge must identify the specific hearsay dangers presented by the statement and consider any means of overcoming them (Khelawon, at paras. 4 and 49; R. v. Hawkins, 1996 CanLII 154 (SCC), [1996] 3 S.C.R. 1043, at para. 75). The dangers relate to the difficulties of assessing the declarant’s perception, memory, narration, or sincerity and should be defined with precision to permit a realistic evaluation of whether they have been overcome.

[27] The hearsay dangers can be overcome and threshold reliability can be established by showing that (1) there are adequate substitutes for testing truth and accuracy (procedural reliability) or (2) there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability) (Khelawon, at paras. 61-63; Youvarajah, at para. 30).

[28] Procedural reliability is established when “there are adequate substitutes for testing the evidence”, given that the declarant has not “state[d] the evidence in court, under oath, and under the scrutiny of contemporaneous cross-examination” (Khelawon, at para. 63). These substitutes must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement (Khelawon, at para. 76; Hawkins, at para. 75; Youvarajah, at para. 36). Substitutes for traditional safeguards include a video recording of the statement, the presence of an oath, and a warning about the consequences of lying (B. (K.G.), at pp. 795-96). However, some form of cross-examination of the declarant, such as preliminary inquiry testimony (Hawkins) or cross-examination of a recanting witness at trial (B. (K.G.); R. v. U. (F.J.), 1995 CanLII 74 (SCC), [1995] 3 S.C.R. 764), is usually required (R. v. Couture, 2007 SCC 28 (CanLII), [2007] 2 S.C.R. 517, at paras. 92 and 95). In this respect, I disagree with the Court of Appeal’s categorical assertion that safeguards relevant to assessing procedural reliability are only “those in place when the statement is taken” (para. 30). Some safeguards imposed at trial, such as cross-examination of a recanting witness before the trier of fact, may provide a satisfactory basis for testing the evidence.

[29] However, jury warnings about the dangers of hearsay evidence or Vetrovec testimony do not provide adequate substitutes for traditional safeguards. Instructing a jury on how to evaluate a statement that it lacks the means to evaluate does not address the hearsay dangers that underlie the exclusionary rule. Furthermore, Vetrovec warnings are designed to address concerns about a witness who is inherently untrustworthy, despite the opportunity to cross-examine in court. They are not tools for assessing the truth and accuracy of a hearsay statement in the absence of contemporaneous cross-examination.

[30] A hearsay statement is also admissible if substantive reliability is established, that is, if the statement is inherently trustworthy (Youvarajah, at para. 30; R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915, at p. 929). To determine whether the statement is inherently trustworthy, the trial judge can consider the circumstances in which it was made and evidence (if any) that corroborates or conflicts with the statement (Khelawon, at paras. 4, 62 and 94-100; R. v. Blackman, 2008 SCC 37 (CanLII), [2008] 2 S.C.R. 298, at para. 55).

[31] While the standard for substantive reliability is high, guarantee “as the word is used in the phrase ‘circumstantial guarantee of trustworthiness’, does not require that reliability be established with absolute certainty” (Smith, at p. 930). Rather, the trial judge must be satisfied that the statement is “so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process” (Khelawon, at para. 49). The level of certainty required has been articulated in different ways throughout this Court’s jurisprudence. Substantive reliability is established when the statement “is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken” (Smith, at p. 933); “under such circumstances that even a sceptical caution would look upon it as trustworthy” (Khelawon, at para. 62, citing Wigmore, at p. 154); when the statement is so reliable that it is “unlikely to change under cross-examination” (Khelawon, at para. 107; Smith, at p. 937); when “there is no real concern about whether the statement is true or not because of the circumstances in which it came about” (Khelawon, at para. 62); when the only likely explanation is that the statement is true (U. (F.J.), at para. 40).

[32] These two approaches to establishing threshold reliability may work in tandem. Procedural reliability and substantive reliability are not mutually exclusive (Khelawon, at para. 65) and “factors relevant to one can complement the other” (Couture, at para. 80). That said, the threshold reliability standard always remains high — the statement must be sufficiently reliable to overcome the specific hearsay dangers it presents (Khelawon, at para. 49). For example, in U. (F.J.), where the Court drew on elements of substantive and procedural reliability to justify the admission of a hearsay statement, both cross-examination of the recanting witness and corroborative evidence were required to meet threshold reliability, though neither on its own would have sufficed (see also Blackman, at paras. 37-52). I know of no other example from this Court’s jurisprudence of substantive and procedural reliability complementing each other to justify the admission of a hearsay statement. Great care must be taken to ensure that this combined approach does not lead to the admission of statements despite insufficient procedural safeguards and guarantees of inherent trustworthiness to overcome the hearsay dangers.
. R. v. Zaba

In R. v. Zaba (Ont CA, 2016) the Court of Appeal commented on the principled exception to the hearsay rule as follows:
[9] The admissibility of hearsay under the principled exception depends on whether the requirements of necessity and reliability are met. The appellant concedes that necessity is established. That leaves the requirement of reliability.

[10] In K.G.B., the Supreme Court set out three criteria relevant to determining the threshold reliability of a statement at pp. 795-96:
i. the statement is made under oath or solemn affirmation after a warning about the consequences of an untruthful account;

ii. the statement is videotaped in its entirety; and

iii. the opposite party has a full opportunity to cross-examine the witness on the statement.
. R v Nurse

In R v Nurse (Ont CA, 2019) the Court of Appeal considered that the principled exception to the hearsay rule might be applied where convention exceptions failed:
(c) The Hearsay Exceptions

[58] The trial judge analyzed the admissibility of the utterances under two common law hearsay exceptions (i.e., dying declaration and spontaneous utterance, also known as res gestae), as well as the principled approach to hearsay.

[59] Since adopting the principled approach to hearsay, the Supreme Court has confirmed the continuing relevance of the traditional exceptions to the hearsay rule: see Starr, at paras. 202-207, per Iacobucci J.; Mapara, at para. 15; and Khelawon, at paras. 42, 60. In Khelawon, at para. 60, Charron J. held that, if a trial judge determines that evidence falls within one of the common law exceptions, this finding is “conclusive”, and the evidence is admissible.

[60] In Mapara, the court recognized that this conclusion may be displaced when the exception itself is challenged: at para. 15; see also Khelawon, at para. 60. That is not the case here; neither exception is under attack on a categorical basis.

[61] The Supreme Court has also recognized that, in “rare cases”, evidence that would otherwise fall within a valid hearsay exception may be excluded if it does not meet the requirements of necessity and reliability in the particular circumstances of the case. In Starr, Iacobucci J. wrote, at para. 214: “However, I wish to emphasize that these cases will no doubt be unusual, and that the party challenging the admissibility of evidence falling within a traditional exception will bear the burden of showing that the evidence should nevertheless be inadmissible.” See also Mapara, at para. 15.

[62] In this court, the parties placed little emphasis on the role of the traditional exceptions. Rather, they accepted the applicability of both exceptions, but focused their submissions solely on the principled approach to hearsay.

[63] In my view, it is important to explore why the evidence is admissible under the two common law exceptions in play in this case, and how those exceptions themselves address reliability concerns associated with hearsay evidence. As I will discuss further, and Iacobucci J. noted in Starr at para. 212, evidence falling within a traditional exception to the hearsay rule is presumptively admissible, as these exceptions “traditionally incorporate an inherent reliability component.” Both exceptions engaged in this case are rooted in an acceptance that the circumstances in which the exception will be met are ones in which there is only a remote possibility of fabrication or concoction. The requirements or “test” for meeting these exceptions are strictly adhered to by courts, presumably in an effort to ensure that the exception is only applied in cases that remain true to the rationale underpinning the exception.

[64] As noted above, in “rare cases” it is possible that despite falling with a traditional exception, the evidence may not meet the requirements of necessity and reliability. Indeed, Iacobucci J. recognized at para. 155 of Starr that “in the event of a conflict between the two, it is the principled approach that must prevail”. However, the party challenging the presumptive admissibility of the evidence bears the burden of establishing a “rare case”.

[65] In the circumstances of the case at bar, the trial judge did not explain why he found that the “rare cases” threshold set out in Starr and Mapara had been met such that it was appropriate to consider the otherwise admissible hearsay evidence under the principled approach.





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