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Evidence - Hearsay - Principled Exception III

. R. v. S.S.

In R. v. S.S. (Ont CA, 2022) the Court of Appeal considered the principled exception to the hearsay exclusion:
[38] In general, where a witness who is called to testify has given a statement to police, that statement will not be admitted into evidence to prove the truth of its contents, because it is hearsay, a report of a previous statement: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at paras. 34-36. However, it can be used in some circumstances to refresh the memory of the witness, and to challenge the witness in cross-examination where there are alleged inconsistencies between the earlier statement and the witness’s in-court testimony.

....

(1) The Principled Exception: Necessity and Threshold Reliability

[40] There are circumstances where relevant hearsay statements can be admitted under the principled exception to the hearsay rule, based on the two criteria of necessity and threshold reliability. If the statement is admitted, its ultimate reliability will be determined by the trier of fact as part of the analysis of proof beyond a reasonable doubt.

[41] Sometimes the necessity criterion may be satisfied because the declarant of the statement has died or, for another reason, is unavailable to give the evidence in court: R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at para. 25. In those cases, the declarant will not be able to be cross-examined regarding the contents of the statement. There are other cases, however, where the necessity criterion is satisfied because the declarant has recanted the statement, such as in R. v. B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740, or has forgotten the statement. In those cases, depending on the circumstances, the veracity and accuracy of the contents of the statement may be able to be tested by cross-examining the declarant in court.

[42] Despite necessity, no statement will be admitted unless the trial judge determines that the statement is sufficiently reliable to overcome the dangers associated with the trier of fact considering hearsay evidence. In the most recent Supreme Court discussion of the rule, Bradshaw, Karakatsanis J., writing for the majority, explained the threshold reliability standard and set out the four hearsay dangers at para. 26:
Threshold reliability is established when the hearsay “is sufficiently reliable to overcome the dangers arising from the difficulty of testing it”. These dangers arise notably due to the absence of contemporaneous cross-examination of the hearsay declarant before the trier of fact. In assessing threshold reliability, the trial judge must identify the specific hearsay dangers presented by the statement and consider any means of overcoming them. 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. [Emphasis added; citations omitted.]
(2) Approaches to Threshold Reliability: Procedural Reliability and Substantive Reliability

[43] In Bradshaw, the court identified two bases upon which threshold reliability can be established, procedural reliability and substantive reliability: at para. 27; see also Khelawon, at paras. 61-63; R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 30. These approaches may work in tandem and are not mutually exclusive. However, the threshold reliability standard “always remains high”: Bradshaw, at para. 32.

[44] Procedural reliability addresses whether there are adequate substitutes for testing the truth and accuracy of the evidence, considering that it was not given in court, under oath, and under the scrutiny of contemporaneous cross-examination. The court identified the following substitutes: a video recording of the statement (for accuracy), the presence of an oath (for veracity), and a warning about the consequences of lying (for veracity). Importantly, the court emphasized that, in addition, for procedural reliability, “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”: Bradshaw, at para. 28 (citations omitted).

[45] Substantive reliability refers to indicia that the statement is inherently trustworthy, including the circumstances in which it was made as well as evidence that either corroborates or conflicts with the statement. Karakatsanis J. explained the substantive reliability standard in Bradshaw, at para. 31, by summarizing and endorsing the court’s previous articulations:
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).
[46] The seminal case of Khan is an example of the type of circumstances that indicate that the statement is substantively reliable. In that case, a three and one‑half year old girl emerged from the doctor’s office with a semen stain on her clothing and immediately told her mother what the doctor had done to her. The child was too young to testify in court. McLachlin J. summarized the circumstances that suggested that the child’s statement was reliable and addressed the concerns that would have been tested by cross-examination at p. 548:
I conclude that the mother’s statement in the case at bar should have been received. It was necessary, the child’s viva voce evidence having been rejected. It was also reliable. The child had no motive to falsify her story, which emerged naturally and without prompting. Moreover, the fact that she could not be expected to have knowledge of such sexual acts imbues her statement with its own peculiar stamp of reliability. Finally, her statement was corroborated by real evidence.
[47] Consequently, the court could be satisfied that in-court cross-examination to test the child’s statement was not needed as a substitute for contemporaneous cross-examination, because the issues that may have caused concern about the reliability of the statement were effectively answered by the circumstances themselves.

[48] In Bradshaw, at para. 40, Karakatsanis J. explained that in assessing threshold reliability, the trial judge’s role is focused on whether in-court cross‑examination of the declarant would add anything to the trial process:
At the threshold stage, the trial judge must decide on the availability of competing explanations (substantive reliability) and whether the trier of fact will be in a position to choose between them by means of adequate substitutes for contemporaneous cross-examination (procedural reliability). [Emphasis in original.]
. R. v. Wood

In R v Wood (Ont CA, 2022) the Court of Appeal summarizes the principled exception to the hearsay exclusion rule:
[65] The admissibility rule applicable here is the hearsay rule, more specifically, the principled exception to that rule, by which evidence subject to the exclusionary effect of the rule may be received. The applicable principles are uncontroversial.

[66] First, the nature of hearsay evidence. No evidence is hearsay on its face. Said in another way, hearsay is not an inherent characteristic of any item of evidence. What warrants characterization of an item of evidence as hearsay is the purpose for which that evidence is introduced. The purpose for which the evidence is adduced labels the evidence as hearsay and engages the hearsay rule: R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520, at para. 36; Khelawon, at para. 57; R. v. Tsekouras, 2017 ONCA 290, 353 C.C.C. (3d) 349, at para. 181, leave to appeal refused, [2017] S.C.C.A. No. 225. The purpose which engages the hearsay rule is when the evidence is adduced to prove the truth of the facts stated: Baldree, at para. 36.

[67] Second and relatedly, it follows where the purpose for which the item of evidence is tendered is not to prove the truth of a statement’s contents, the hearsay rule is not implicated, thus does not constitute a bar to the admission of the evidence. However, removal of the hearsay rule as a bar to reception of the evidence does not mean that the evidence will be received. Another rule may intrude, or the evidence may be excluded in the exercise of judicial discretion.

[68] Where evidence is not tendered or is admitted for a non-hearsay purpose it is not reached by the exclusionary aspect of the hearsay rule, thus does not require an exception to justify its admission. Evidence not tendered to prove the truth of its contents may have probative value as non-hearsay, as for example, to establish that a party had notice of certain information, was the speaker, or received threats supportive of the excuse of duress: Tsekouras, at para. 182; R. v. Evans, 1993 CanLII 86 (SCC), [1993] 3 S.C.R. 653, at pp. 662-663.

[69] Third, the essential defining features of hearsay. The defining features of hearsay are the fact that the purpose for which the statement is adduced is to prove the truth of its contents and the absence of a contemporaneous opportunity to cross-examine the hearsay declarant: Baldree, at para. 30, citing Khelawon, at para. 56. Hearsay evidence is presumptively inadmissible because of the difficulties inherent in testing the reliability of the declarant’s assertion: Baldree, at para. 31; Tsekouras, at para. 147.

[70] Fourth, the exceptions to the exclusionary rule. Hearsay may be admitted under a listed exception or, more recently, under the principled exception which requires its proponent to establish not only that its admission is necessary, but also that the hearsay tendered for admission is reliable: Khelawon, at paras. 2, 47; R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at para. 23.

[71] Fifth, the reliability requirement. A proponent may establish the threshold reliability of hearsay evidence by showing that:
i. there are adequate substitutes for testing the truth and accuracy of the proposed evidence (procedural reliability); or

ii. there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability).

See, Khelawon, at paras. 61-63; Bradshaw, at para. 27; R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 30.
[72] To establish procedural reliability, the proponent must adduce evidence that adequate substitutes exist for testing the hearsay evidence since the declarant has not testified in court, under oath or its equivalent, and under the scrutiny of contemporaneous cross-examination. These surrogates must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement. Typical substitutes for the usual safeguards include a video recording of the statement, the presence of an oath or its equivalent, and a warning about the consequences of lying. But some form of cross-examination is ordinarily required: Bradshaw, at para. 28.

[73] Substantive reliability, the functional equivalent of Dean Wigmore’s “circumstantial guarantee of trustworthiness”, sets a higher standard for the hearsay proponent to meet. The judge or court must be satisfied that the statement is so reliable that contemporaneous cross-examination of the declarant would add little, if anything, to the process. To determine whether the statement is inherently trustworthy, the trial judge or court can consider the circumstances in which the statement was made, as well as any evidence that corroborates or conflicts with it: Bradshaw, at paras. 30-31. Substantive reliability is established where the statement is so reliable that it is unlikely to change under cross-examination: Bradshaw, at para. 31, citing Khelawon, at para. 107. See also, R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915, at p. 937.

[74] The procedural and substantive approaches to establishing threshold reliability under the principled exception to the hearsay rule are not mutually exclusive. They may work in tandem. Factors relevant to one can complement the other. But at bottom, the threshold reliability standard remains high. The statement must be reliable enough to overcome the specific hearsay dangers it presents, whether perception, memory, communication, sincerity or some combination of them: Bradshaw, at para. 32.

[75] Sometimes, embedded within a hearsay statement tendered for admission is an additional hearsay statement. To permit reception in these circumstances, each level of hearsay must be admissible under a listed or the principled exception: see R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 172.
. R. v. Rowe

In R. v. Rowe (Ont CA, 2021) the Court of Appeal set out basics of the hearsay evidence exclusion rule and it's principled exception (necessity and reliability), particularly on procedural and substantive reliability:
[32] Hearsay is an out-of-court statement relied upon for the truth of its contents. Hearsay statements are presumptively inadmissible: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 2.

[33] The primary rationale underlying the rule against hearsay is rooted in concerns over the inability to test the reliability of out-of-court statements. Absent the declarant being present in court and available for contemporaneous cross-examination, concerns over reliability prevail. These concerns include whether the statement is accurately recorded and whether the declarant accurately and honestly perceived, recalled, and narrated the events: Khelawon, at para. 2.

[34] Accordingly, the presumption against the admissibility of hearsay evidence is directed at improving the court’s “truth-seeking function”: Khelawon, at para. 2. However, there are times (like this case) when the exclusion of hearsay statements will directly undermine the court’s fact-finding process; where the exclusion of hearsay statements, rather than their admission, will “impede accurate fact finding”: Khelawon, at para. 2; Bradshaw, at para. 22.

[35] Accordingly, trial judges perform an important gatekeeping function when considering whether the presumption against admission has been rebutted. In making that determination, judges focus upon whether the twin criteria of necessity and threshold reliability have been met on a balance of probabilities: Bradshaw, at para. 23, referring to Khelawon, at para. 47. Even where that burden has been met, trial judges retain a residual discretion to nonetheless exclude the statements if their prejudicial effect outweighs their probative value: Khelawon, at para. 3.

....

[41] Under the principled exception to the rule against hearsay, necessity is not measured by the overall strength of the case of the party seeking admission of the statement for the truth of its contents. That is, “[t]he criterion of necessity […] does not have the sense of ‘necessary to the prosecution’s case’”: R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915, at p. 933.

[42] Rather, necessity is measured by availability. Sometimes a hearsay statement becomes unavailable because a witness goes missing, dies, or is otherwise unavailable to testify. And sometimes a statement becomes unavailable because a witness is present and available to testify, but refuses to do so or, as in this case, recants the earlier statement. In the case of a recantation, the “recanting witness holds the prior statement, and thus the relevant evidence, ‘hostage’:” R. v. B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740, at p. 799. In these circumstances, necessity arises from the unavailability of the testimony that would otherwise reflect the content of the prior relevant statement: Khelawon, at para. 78.

[43] Accordingly, “[w]here a witness recants from a prior statement, necessity is established”: R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 22. It is that simple. The focus then turns to threshold reliability.

.....

[45] Threshold reliability can be shown by demonstrating that there are: (1) adequate substitutes in place to test the truth of the statement (“procedural reliability”); or (2) sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (“substantive reliability”): Bradshaw, at para. 27; Khelawon, at paras. 61-63; and Youvarajah, at para. 30. Procedural and substantive reliability do not exist in mutually exclusive silos, but rather work in tandem to overcome hearsay dangers: Bradshaw, at para. 32; R. v. Devine, 2008 SCC 36, [2008] 2 S.C.R. 283, at para. 22. Therefore, strength in one area, such as substantive reliability, can be compensated for by procedural reliability and the opposite is also true.

....

(b) Procedural Reliability

[47] Because hearsay evidence is not given by a witness in court under oath or affirmation, and is not subjected to the typical rigours of contemporaneous cross-examination, procedural reliability focuses upon whether there exist adequate substitutes for testing the statement: Bradshaw, at para. 28; Khelawon, at para. 63.

[48] Over time, courts have come to recognize three ways of rationally evaluating the truth and accuracy of hearsay statements from a procedural perspective: (1) the availability of the declarant to be cross-examined before the trier of fact; (2) the presence of an oath or solemn affirmation after a caution about the consequences arising from being untruthful; and (3) videotaping or recording the statement in its entirety: B. (K.G.), at pp. 795-96; Youvarajah, at para. 29.

....

[53] I start with the observation that the availability of the declarant for cross-examination is widely considered the most important of the three procedural safeguards: R. v. U. (F.J.), 1995 CanLII 74 (SCC), [1995] 3 S.C.R. 764, at para. 39. The status of the declarant as a witness who can be cross-examined on a prior inconsistent out-of-court statement has been described as the “most powerful factor favouring admissibility”: R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, at para. 95. The importance of the declarant’s participation in court before the trier of fact was again reinforced in Youvarajah, at para. 35, where this factor was described as the “most important factor supporting the admissibility of a prior inconsistent statement of a non-accused witness for the truth of its contents.” Indeed, as more recently noted in Bradshaw, at para. 28, “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” (emphasis added).

....

(c) Substantive Reliability

[78] There is a critical distinction to be made between threshold and ultimate reliability. At the threshold stage, it is for the trial judge to determine whether there exist “sufficient indicia of reliability so as to afford the trier of fact ‘a satisfactory basis for evaluating the truth of the statement’”: R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520, at para. 83, citing R. v. Hawkins, 1996 CanLII 154 (SCC), [1996] 3 S.C.R. 1043, at para. 75; Khelawon, at para. 88. However, whether the statement is actually true remains within the exclusive jurisdiction of the trier of fact and, in a criminal trial involving a jury, it is “constitutionally imperative” that this be so: Khelawon, at para. 50.
. R. v. J.L.

In R. v. J.L. (Ont CA, 2021) the Court of Appeal set out the 'principled exception' to the hearsay evidence exclusion rule:
[24] The first two statements were admitted under the principled exception to the hearsay rule. Under that exception, an out of court statement may be admitted for the truth of its contents if the party tendering it demonstrates, on a balance of probabilities, that the statement satisfies the criteria of “necessity” and “threshold reliability”: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 47; R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at para. 23. Even if the trial judge concludes that those criteria are satisfied, she has the discretion to exclude it if the prejudicial effect outweighs its probative value: Khelawon, at para. 49; Bradshaw, at para. 24.

[25] As the trial judge noted, “threshold reliability” can be established either by showing that there are adequate substitutes for the traditional safeguards for testing the truth and accuracy of the hearsay evidence (procedural reliability) or that there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability): Khelawon, at paras. 61-63; Bradshaw, at paras. 27-28, 30-31.

[26] The statement must be sufficiently reliable to overcome the dangers arising from the difficulty in testing it: Khelawon, at para. 49; Bradshaw, at paras. 26, 32. As Bradshaw explains, “…[s]ubstantive reliability is concerned with whether the circumstances and any corroborative evidence provide a rational basis to reject alternative explanations for the statement, other than the declarant’s truthfulness or accuracy”: at para. 40. Thus, the trial judge must identify alternative, even speculative, explanations for the hearsay statement and, based on the circumstances and evidence led on voir dire, must be able to rule out any plausible explanation on a balance of probabilities: Bradshaw, at paras. 48, 49. The circumstances in which the statement was made and corroborative evidence, if any, must substantially negate the possibility that the declarant was untruthful: Bradshaw, at paras. 31, 90.

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