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Evidence - Hearsay - Principled Exception (2)

. R. v. Al-Enzi

In R. v. Al-Enzi (Ont CA, 2021) the Court of Appeal considered the principled exception to the hearsay rule:

(b) Principled Exception to the Rule Against Hearsay Evidence

[118] Hearsay evidence is presumptively inadmissible on the basis that, “absent contemporaneous cross-examination of the declarant, the party against whom the evidence is offered cannot effectively test the reliability and veracity of the out-of-court statement”: Dupe, at para. 44. Such evidence is generally “excluded both to protect the integrity of the truth-seeking function of the trial and to preserve the fairness of the trial”: at para. 44.

[119] However, under the principled approach to hearsay, “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”: R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at para. 23.
(c) The Principled Exception - Necessity

[120] In R. v. Srun, 2019 ONCA 453, 146 O.R. (3d) 307, Watt J.A. described the necessity requirement in the following terms, at para. 123:

The necessity requirement of the principled approach to the hearsay rule may be established where the party seeking admission of the hearsay statement cannot compel testimony from the declarant. … Indeed, unavailability and thus necessity can be established even where the declarant is not unavailable in the strict physical sense. [Emphasis added; citations omitted.]

[121] Prior jurisprudence demonstrates that the necessity requirement should not be narrowly construed. Lamer C.J. (as he then was) writing in R. v. B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740, described the flexible analysis of this criterion, at p. 796:

However, it is important to remember that the necessity criterion "must be given a flexible definition, capable of encompassing diverse situations". Wigmore… referred to two classes of necessity:

(1) The person whose assertion is offered may now be dead, or out of the jurisdiction, or insane, or otherwise unavailable for the purpose of testing. This is the commoner and more palpable reason ....

(2) The assertion may be such that we cannot expect, again, or at this time, to get evidence of the same value from the same or other sources .... The necessity is not so great; perhaps hardly a necessity, only an expediency or convenience, can be predicated. But the principle is the same. [Emphasis added; citations omitted.]

[122] Finally, “[w]here a witness recants from a prior statement, necessity is established”: R. v. Youvaraj, 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 22; see also R. v. McMorris, 2020 ONCA 844, at para. 22.

(d) The Principled Exception – Threshold Reliability

[123] Watt J.A. observed in Srun, at paras. 125-127, that the threshold reliability requirement can be met in one of two, non-mutually exclusive ways, generally referred to as procedural reliability and substantive reliability:

Procedural reliability is established when there are adequate safeguards for testing the evidence despite the fact that the declarant has not given the evidence in court, under oath or its equivalent and under the scrutiny of contemporaneous cross-examination. These substitutes must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement. Among the substitutes for traditional safeguards are video recording the statement, administration of an oath and warning the declarant about the consequences of lying. However, some form of cross-examination, as for example of a recanting witness at trial is usually required.

Substantive reliability is established where the hearsay statement is inherently trustworthy. To determine whether the statement is inherently trustworthy, a trial judge considers the circumstances in which the statement was made and any evidence that corroborates or conflicts with the statement. The standard for substantive reliability is high: the judge must be satisfied that the statement is so reliable that contemporaneous cross-examination on it would add little if anything to the process.

Procedural and substantive reliability are not mutually exclusive. They may work in tandem in that elements or both can combine to overcome the specific hearsay dangers a statement might present even where each, on its own, would be insufficient to establish reliability. [Emphasis added; citations omitted]

[124] A trial judge assessing the admissibility of evidence in a voir dire must keep in mind the distinction between threshold and ultimate reliability. At the admissibility stage, a trial judge has a ‘limited role’ in assessing the evidence’s threshold reliability on a balance of probabilities. It is for the trier of fact to determine the evidence’s ultimate reliability; “it is crucial to the integrity of the fact-finding process that the question of ultimate reliability not be pre-determined on the admissibility voir dire”: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 93; see also Bradshaw, at para. 42; McMorris, at para. 23.

(e) Residual Discretion to Exclude Unduly Prejudicial Evidence

[125] Satisfying the twin criteria of the principled exception to the hearsay rule does not end the admissibility analysis, however, as a trial judge maintains a residual discretion to “exclude otherwise admissible hearsay where its probative value is outweighed by its prejudicial effect”: Srun, at para. 128.

. R. v. McMorris

In R. v. McMorris (Ont CA, 2020) the Court of Appeal extensively considered the principled exception to the hearsay rule in a criminal trial:

(1) The Governing Principles

[19] Bent’s statements to Graham were plainly hearsay statements and were therefore presumptively inadmissible: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 3. Fish J. explained the dangers that render hearsay presumptively inadmissible in R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520, at para. 32:

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.]

[20] Trial judges may nevertheless admit hearsay evidence under one of the traditional exceptions to the hearsay rule or under the principled exception developed by the Supreme Court in R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531, and Khelawon. Karakatsanis J. traced the evolution of the principled exception in R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at paras. 19-24.

[21] The principled exception is intended to enhance the truth-seeking function of a trial and accurate fact-finding. Hearsay evidence is admissible under the principled exception if it “meets the twin threshold requirements of necessity and reliability”: R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 21. By the nature of these requirements, this must be “a flexible case-by-case examination”: Youvarajah, at para. 21.

(a) Necessity

[22] Necessity can be established when a witness dies, recants, or, as here, refuses to testify: Bradshaw, at para. 25; R. v. K.G.B., 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740, at pp. 796-99. It is common ground that Bent’s refusal to testify satisfied the necessity requirement in this case. The issue was whether Bent’s statements met the threshold reliability test.

(b) Threshold Reliability

[23] The trial judge’s task is to determine threshold reliability on a balance of probabilities. Ultimate reliability is a matter for the trier of fact, in this case the jury.

[24] Although it has been said that some form of cross-examination of the hearsay declarant is usually required, such as preliminary inquiry testimony or cross-examination of a recanting witness at trial, the whole point of the principled exception to the hearsay rule is that exceptions are acceptable in certain circumstances.

[25] The methodology for trial judges to follow in determining threshold reliability, was prescribed in Bradshaw, at paras. 26-28, and 30-32. I re-state the methodology in brief.

[26] Threshold reliability is established by showing that cross-examination of the declarant is unnecessary because there are: (1) adequate substitutes for testing truth and accuracy (procedural reliability); or (2) sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability); or (3) a combination of elements of both procedural and substantive reliability (which plays no role in this case).

[27] The trial judge must specify the statement’s particular hearsay dangers regarding the declarant’s perception, memory, narration, or sincerity, and must evaluate whether and how the dangers specific to the case can be overcome because the truth of the statement cannot be tested by the declarant’s cross-examination.

(i) Procedural Reliability

[28] Procedural reliability is established by showing that there are adequate substitutes for testing the hearsay evidence to permit the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement. Substitutes might be a video or audio recording of the declarant’s statement, the presence of an oath, or a warning to the declarant about the consequences of lying.

(ii) Substantive Reliability

[29] Substantive reliability is established by showing that the hearsay statement is inherently trustworthy because of the circumstances in which the declarant made it and evidence, if any, that corroborates it.

[30] The standard for substantive reliability is high, but what is commonly referred to as the “circumstantial guarantee of trustworthiness” does not require absolute certainty. 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,” for example, when the statement “is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken,” so that the statement is so reliable that it is “unlikely to change under cross-examination,” or when the only likely explanation is that the statement is true: Bradshaw, at para. 31.

(iii) The Role of Corroborative Evidence

[31] A trial judge may rely on corroborative evidence to find that a hearsay statement shows sufficient substantive reliability to justify a finding of threshold reliability: Bradshaw, at para. 4. Karakatsanis J. set out the methodology and the principles for the use of corroborative evidence in the substantive reliability analysis in Bradshaw, at para. 57:

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 the statement in the particular circumstances of the case;

3. based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement; and

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.

[32] Commentators have expressed concern that a degree of uncertainty might have been injected into the test by Karakatsanis J.’s use of the words “alternative, even speculative, explanations for the statement,” at paras. 48 and 57 of Bradshaw: See Hamish Stewart, “The Future of the Principled Approach to Hearsay” (2018) 23 Can. Crim. L. Rev. 183; Chris D.L. Hunt and Micah Rankin, “R. v. Bradshaw: The Principled Approach to Hearsay Revisited” (2018) 22 Int’l J. Evidence & Proof 68.

[33] I do not share this concern. In my view Karakatsanis J. was describing the trial judge’s anticipated reasoning process, not its culmination. The trial judge is required to consider “alternative, even speculative, explanations for the statement” while thinking through the reliability analysis. But speculative explanations must survive scrutiny under the lens of para. 49 in order to warrant a role in the determination of threshold reliability:

While the declarant’s truthfulness or accuracy must be more likely than any of the alternative explanations, this is not sufficient. Rather, the fact that the threshold reliability analysis takes place on a balance of probabilities means that, based on the circumstances and any evidence led on voir dire, the trial judge must be able to rule out any plausible alternative explanations on a balance of probabilities. [Emphasis added.]

[34] Any speculative explanation, in short, must be plausible on a balance of probabilities and any speculative explanation that does not survive such scrutiny is to be rejected. Any explanation left over becomes the plausible candidate for assessment at step four; “the only remaining likely explanation for the statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement.” In other words, not just any speculative explanation or fanciful idea suffices to abort the threshold reliability analysis – only those that are, on reflection, reasonably plausible. I take this to have been the intention of Karakatsanis J. in Bradshaw. This court’s decision in R. v. Nurse, 2019 ONCA 260, takes that approach at paras. 105 ff, and so demonstrates that the test can be met, despite Professor Stewart’s concern that the Bradshaw test sets “a standard that is almost impossible to meet”: Stewart, at p. 193. See also the comment by Lisa Dufraimont on Nurse to the same effect: 54 C.R. (7th). And see R. v. Tsega, 2019 ONCA 111, leave to appeal refused, [2019] S.C.C.A. No. 106, at para. 26, per Hourigan J.A.

(iv) When the Narrator is not the Declarant

[35] When the narrator is not the declarant, how is threshold reliability to be assessed? This case presents such a situation. There is both a narrator – Jermaine Graham – and a declarant – Jerome Bent.

[36] As this court observed in R. v. Humaid (2006), 2006 CanLII 12287 (ON CA), 208 C.C.C. (3d) 43 (Ont. C.A.), leave to appeal refused, [2006] S.C.C.A. No. 232, at para. 51, and more recently in R. v. Vickers, 2020 ONCA 275, at para. 58, threshold reliability is a substitute for the cross-examination of the declarant, not the narrator. Charron J. endorsed the Humaid approach in R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at paras. 48-50.

[37] In Blackman, Charron J. noted, at para. 48, that because the narrator would have testified at trial, “her credibility and reliability as they related to the [deceased wife’s] out-of-court statements could be fully tested on cross-examination at trial.” She added, at para. 50, that the cross-examination of the narrator would put the triers of fact in a position to “fully assess the truthfulness and accuracy” of the narrator’s testimony. If the narrator is available for cross-examination at trial, then the narrator’s credibility can “safely be left to the trier of fact to consider”: Vickers, at para. 58, citing R. v. Berry, 2017 ONCA 17, 345 C.C.C. (3d) 32, leave to appeal refused, [2017] S.C.C.A. No. 171, at para. 50. And see R. v. Charlton, 2019 ONCA 400, 146 O.R. (3d) 353, at paras. 33-34; R. v. Cote, 2018 ONCA 870, 143 O.R. (3d) 333, at para. 30.

[38] However, there is not a categorical prohibition on the trial judge making preliminary evaluations of the narrator’s credibility and reliability at the threshold reliability stage. Charron J. specifically noted, at para. 51 of Blackman that, “in cases where the recipient of the out-of-court statement is not available for cross-examination, his or her credibility and truthfulness may play an important role in assessing the question of threshold admissibility” (emphasis in original). She presented the apt example of a jailhouse informant, at para. 51:

Consider, for example, if the Crown sought to adduce the out-of-court statement of a jailhouse informant containing an alleged statement from the accused and the informant was not available to be cross-examined. Difficulties with the recipient’s evidence would be relevant to the question of threshold reliability because the form in which the hearsay statement is ‘packaged’ necessarily impacts on the jury’s ability to test the truth and accuracy of the declarant’s statements.

[39] Crucially, Charron J. also endorsed Doherty J.A.’s caveat at para. 57 of Humaid:

There may be cases where the credibility or reliability of the narrator of the out-of-court statement is so deficient that it robs the out-of-court statement of any potential probative value. In such cases, and I think they would be relatively rare, a trial judge could conclude that the narrator’s evidence was so incredible or unreliable as to necessitate the exclusion of the evidence based on the exercise of his or her residual discretion.

[40] To summarize the law on the application of the Humaid caveat to the assessment of threshold reliability when the narrator is not the declarant: first, the caveat is an exception to the general rule that excluding evidence about a declarant’s statement based on the reliability of the narrator would be an error if the narrator is available to testify; second, the circumstances giving rise to the caveat will be relatively rare; and, third, the decision to rely on the caveat falls under the trial judge’s residual discretion: Berry, at paras. 50-53.

(c) Balancing Probative Value and Prejudicial Effect

[41] A trial judge has discretion to exclude evidence that otherwise qualifies for admission under the principled exception to the hearsay rule if its prejudicial effect exceeds its probative value, in the case of Crown evidence, or, in the case of defence evidence, the potential prejudice substantially outweighs the potential probative value to the defence of the out-of-court statement: Humaid, at para. 57, citing R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129 and R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577.

[42] This court owes deference to a trial judge’s discretionary decision to exclude evidence: R. v. Candir, 2009 ONCA 915, 250 C.C.C. (3d) 139, at para. 80, per Watt J.A.

(d) The Trial Judge’s Residual Discretion

[43] A trial judge has discretion to relax the rules of evidence as they apply to the defence where doing so is necessary to prevent a miscarriage of justice: Bradshaw, at para. 187; R. v. Tash, 2013 ONCA 380, 306 O.A.C. 173, at para. 89; R. v. Kimberley (2001), 2001 CanLII 24120 (ON CA), 56 O.R. (3d) 18 (C.A.), leave to appeal refused [2002] S.C.C.A. No. 29. Again, this court owes deference to the trial judge’s exercise of such discretion.

. R. v. Vickers

In R. v. Vickers (Ont CA, 2020) the Court of Appeal reviews some points on the principled exception to the hearsay rule:

[54] In our view, the proposed evidence cannot satisfy the necessity requirement. The declarant, C.B., is available. He is competent. He is compellable. And he is currently in custody serving a sentence of imprisonment. First-hand evidence is available. Reluctance to testify does not establish unavailability, much less necessity: see R. v. F. (W.J.), 1999 CanLII 667 (SCC), [1999] 3 S.C.R. 569, at para. 44. [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.

[57] In our view the proposed evidence cannot meet the standard required to establish substantive reliability. The statements were made years after the relevant events they describe. They are but one of a series of versions of events, preceded and followed by others inconsistent with them, including the only under-oath account of the same events. To say that contemporaneous cross-examination would add little, if anything, to the process would be to engage in the grossest form of understatement.

[58] We do not doubt the credibility of any of the hearsay recipients or their narration of C.B.’s statements. But this does not assist the appellant. Threshold reliability serves as a substitute for cross-examination of the declarant (in this case, C.B.), not the narrator: see R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at paras. 48-50; R. v. Humaid (2006), 2006 CanLII 12287 (ON CA), 208 C.C.C. (3d) 43 (Ont. C.A.), at para. 51, leave to appeal refused, [2006] S.C.C.A. No. 232. Where the narrator is available for cross-examination at trial, issues regarding their credibility can “safely be left to the trier of fact to consider”: R. v. Berry, 2017 ONCA 17, 345 C.C.C. (3d) 32, at para. 50, n.2.

[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.