Evidence - Hearsay - Principled Exception (4). R. v. Budimirovic
In R. v. Budimirovic (Ont CA, 2023) the Court of Appeal considered the substantive and procedural 'reliability' elements of the principled exception to the hearsay rule:
B. NO ERROR IN ADMITTING THE HOCKETT STATEMENTS. 9725440 Canada Inc. v. Vijayakumar
 Because the Hockett Statements were hearsay, they could only be admitted under the principled approach where they met the twin requirements of necessity and threshold reliability.
 Necessity was not an issue in the appeal. The question for the trial judge was whether the Crown had shown that the Hockett Statements met the standard of threshold reliability.
 The trial judge found that the Hockett Statements should be admitted on the basis of their procedural reliability. She noted that many hallmarks of procedural reliability were present in this case, including the quality of the video and audio recording, the presence of the oath, and the fact that Ms. Hockett clearly understood her obligation to tell the truth. The jury would also be able to observe Ms. Hockett’s demeanor and how she answered questions when watching the video. The trial judge found that there was a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of Ms. Hockett’s hearsay statements based on these considerations coupled with evident problems with the statements themselves. and admitted them for the truth of their contents.
 The trial judge noted that, having admitted the Hockett Statements on the basis of procedural reliability, it was not necessary for her to make a finding in relation to substantive reliability. Nevertheless, she went on to consider whether, in the alternative, they might also be admissible because of their substantive reliability. After accurately identifying the material aspects of the statements and the hearsay dangers, she concluded that the high bar for substantive threshold reliability was not met.
 The appellant does not take issue with the trial judge’s finding that the Hockett Statements satisfied the procedural reliability standard. Rather, he argues that the trial judge applied an unduly formalistic approach by treating procedural and substantive reliability as separate and independent considerations. Relying on the statement by Karakatsanis J. in R v Bradshaw, 2017 SCC 35, 1 S.C.R. 865, at para. 32, that procedural and substantive reliability “may work in tandem”, the appellant argues that the fact that the Hockett statements failed to satisfy the substantive reliability standard should have resulted in their exclusion from evidence.
 In our view, the appellant has taken the reference in Bradshaw to procedural and reliability working “in tandem” out of context. Karakatsanis J was referring to circumstances in which neither procedural nor substantive reliability on their own provide a sufficient basis to admit a hearsay statement but where together they clear the threshold reliability hurdle. But that is not the circumstance here, given the trial judge’s finding that the Hockett Statements were admissible on the basis of procedural reliability alone.
 It is settled law that hearsay statements may be admitted either on the basis of their procedural or their substantive reliability: R. v. Mohamad, 2018 ONCA 966, 369 C.C.C. (3d) 211, at para. 115. As Watt J.A. noted in Mohamad, procedural and substantive reliability “afford two routes to the same destination…[and] are equivalents in the quest to establish threshold reliability.” If procedural reliability is sufficiently made out, then substantive reliability does not need to be established. Therefore, having found the Hockett Statements to be sufficiently procedurally reliable, the trial judge correctly found that the statements were admissible.
 We therefore dismiss this ground of appeal.
In 9725440 Canada Inc. v. Vijayakumar (Ont CA, 2023) the Court of Appeal considered the 'necessity' element of the principled (reliable and necessary) exception to the hearsay exclusion rule:
 By sustaining the appellants’ objection, the trial judge accepted that Mr. Blanc’s testimony beyond his own personal knowledge was hearsay. As hearsay evidence, Mr. Blanc’s evidence could only be admissible in place of Mr. Lin’s evidence of the respondent’s intention at the time of contracting if it were admissible under one of the established exceptions or the principled exception to the hearsay rule.. R. v. Mohamed
 None of the established exceptions apply here. To be admissible under the principled exception to the hearsay rule, the evidence in question had to be necessary and reliable: R. v. Khelawon, 2006 SCC 57,  2 S.C.R. 787, at para. 2. To satisfy the necessity requirement, Mr. Lin had to be truly unavailable to testify at trial either in person or by videoconference or teleconference as permitted under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 1.08(1). A mere reluctance to testify does not constitute necessity: R. v. Vickers, 2020 ONCA 275, at para. 45; R. v. F.(W.J.), 1999 CanLII 667 (SCC),  3 S.C.R. 569, per McLachlin J. (for the majority), at para. 44.
In R. v. Mohamed (Ont CA, 2023) the Court of Appeal considered the principled hearsay exception (necessity and reliability), here the 'substantive reliability' element of the reliability aspect and how corroborative evidence may satisfy it:
 Threshold substantive reliability “is concerned with whether the circumstances [in which the statement was made], and any corroborative evidence, provide a rational basis to reject alternative explanations for the statement, other than the declarant’s truthfulness and accuracy” (emphasis in original): Bradshaw, at para. 40. If the Crown establishes that this is so, presumptive inadmissibility will be overcome because the hearsay evidence will be so inherently trustworthy “that contemporaneous cross-examination of the declarant would add little if anything to the process”: Bradshaw, at para. 31; R. v. McMorris, 2020 ONCA 844, 398 C.C.C. (3d) 179, at para. 30; R v. Barrett, 2020 NSCA 79, at para. 21. This question – whether in-court cross-examination of the declarant would add anything to the trial process – is to be the trial judge’s “preoccupation”: Bradshaw, at para. 40; R v. S.S., 2022 ONCA 305, at paras. 48-53.. R. v. Mohamed
 Thus, when assessing threshold reliability, the trial judge is required to “identify the specific hearsay dangers presented by the statement and consider any means of overcoming them”: Bradshaw, at para. 26.
 Where corroborative evidence is relied upon in demonstrating threshold substantive reliability, the corroborative evidence must overcome the specific hearsay dangers presented by the material aspects of the contents of the statement that the party wants to rely upon: Bradshaw, at paras. 45-47; McMorris, at paras. 80-81. It will do so when, considered as a whole, along with other indicia of reliability, the corroborative evidence shows that the only “likely explanation” for the hearsay statement is the declarant’s truthfulness and the accuracy of the material aspects of the statement, such that the material aspects of the statement are unlikely to change under cross-examination, making cross-examination unnecessary: Bradshaw, at paras. 4, 44, 47; R v Tsega, 2019 ONCA 111, 372 C.C.C. (3d) 1, at paras. 26, 44, leave to appeal denied,  S.C.C.A. No. 106; R. v. Bernard, 2018 ABCA 396; 368 C.C.C. (3d) 437, at para. 23; R. v. Newsham, 2019 BCCA 126, at paras. 31, 36; R. v. Hall, 2018 MBCA 122, 368 C.C.C. (3d) 520, at para. 70.
 “Corroborative evidence that is ‘equally consistent’ with the truthfulness and accuracy of the statement as well as another hypothesis is [therefore] of no assistance”: Bradshaw, at paras. 48-49. As a result, the requirements of substantive reliability will be met if, “in the circumstances of the case, [the corroborative evidence shows] 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” (emphasis in original): Bradshaw, at para. 47.
 Of significance, information that merely supports the truthfulness of the statement or supports the allegation or corroborates the declarant’s credibility is not enough: Bradshaw, at paras. 34-36, 42, 44; Tsega, at paras. 44-50. “The function of the corroborative evidence at the threshold reliability stage is to mitigate the need for cross-examination, not generally, but on the point that the hearsay is tendered to prove” (emphasis in original): Bradshaw, at para. 46.
 A four-step analysis should, therefore, be undertaken when corroborative evidence is relied upon. As described in Bradshaw, at para. 57, the trial judge should:
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.
In R. v. Mohamed (Ont CA, 2023) the Court of Appeal considered the principled hearsay exception (necessity and reliability):
 The general principles that apply to the principled hearsay exception can be stated simply. In order to gain admission under this exception the Crown had to demonstrate that the twin criteria of necessity and threshold reliability were met on the balance of probabilities. The refusal by A.A. to testify satisfied the necessity requirement. Whether the threshold reliability requirement was met depended on the Crown showing that each statement satisfied the procedural reliability or substantive reliability standards, or a combination of the two.. R. v. MacKinnon
In R. v. MacKinnon (Ont CA, 2022) the Court of Appeal reviewed basics of the principled hearsay exception (necessity and reliability), here with corroborative evidence supporting 'reliability':
ii. The Principled Exception for Admission of Hearsay Evidence
 If hearsay evidence does not fall under a traditional hearsay exception, such as spontaneous utterance, it may still be admitted as a principled exception if sufficient indicia of necessity and threshold reliability are established on a balance of probabilities: Bradshaw, at para. 23; R. v. Blackman, 2008 SCC 37,  2 S.C.R. 298, at para. 33.
 Necessity is established, for instance, where the declarant is dead: Blackman, at para. 34; R. v. Candir, 2009 ONCA 915, 250 C.C.C. (3d) 139, at para. 57, leave to appeal refused,  S.C.C.A. No. 8.
 Threshold reliability can be established through:
i. adequate substitutes for testing the truth and accuracy of the statement (procedural reliability); If the hearsay danger relates to the declarant’s sincerity, truthfulness will be the issue; if the hearsay danger is memory, narration, or perception, accuracy will be the issue: Bradshaw, at para. 44. The trial judge must be able to rule out any plausible alternative explanations for the hearsay statement on a balance of probabilities: Bradshaw, at para. 49.
ii. circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability); or
iii. a combination of elements of both procedural and substantive reliability: Bradshaw, at paras. 27, 30 and 40; McMorris, at paras. 26-27. The trial judge must identify the specific hearsay dangers presented by the statement, consider how they can be overcome, and decide whether the hearsay is “sufficiently reliable to overcome the dangers arising from the difficulty of testing it”: Khelawon, at para. 49; Bradshaw, at para. 26.
 The statement must be “so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process”: Bradshaw, at para. 31, citing Khelawon, at para. 49.
 In Bradshaw, the Supreme Court addressed the issue of when corroborative evidence can be relied on by a trial judge in deciding whether to admit hearsay evidence under the principled exception. Justice Karakatsanis, for the majority, held that “[t]o 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”: Bradshaw, at para. 30.
 The circumstances in which a hearsay statement was made may, on their own, enable the trial judge to rule out any plausible alternative explanations for the statement on a balance of probabilities, bearing in mind the specific hearsay dangers associated with the statement: see Bradshaw, at paras. 3, 44 and 47. In such cases, extrinsic evidence need not be considered to determine admissibility because substantive reliability has been established and the statement is admissible. Any other extrinsic evidence that tends to corroborate (or contradict) the hearsay statement, if admissible, will go to ultimate reliability, not threshold reliability. It is for the trier of fact to decide how much reliance is to be placed on the hearsay statement in the context of the entire evidence which may include evidence that supports or undermines the proffered truth in the hearsay statement: Khelawon, at para. 50.
 However, if substantive reliability is not met after examining the circumstances in which the statement was made, trial judges may turn to corroborative evidence to establish substantive reliability provided that the corroborative evidence is “trustworthy” and shows 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”: Bradshaw, at paras. 38, 44, and 50.
 In other words, while corroborative evidence may provide trial judges with additional evidentiary guarantees of the statement’s inherent trustworthiness, it is not a prerequisite and its absence does not, by itself, raise a concern about the substantive reliability of the statement. Another appellate court has drawn a similar conclusion: see Hall (MBCA), at paras. 79-85.
 There are strong policy reasons for limiting the use of corroborative evidence in this manner. For example, as noted by the court in Bradshaw, if a trial judge is entitled to consider any extrinsic evidence that corroborates any part of a hearsay statement when assessing its threshold reliability, the voir dire could become an unwieldy trial within a trial. There is also a risk that flawed inculpatory hearsay evidence could be admitted simply because there is strong evidence of the accused’s guilt: Bradshaw, at para. 42; R. v. Laure, 2018 YKCA 9, 47 C.R. (7th) 133, at para. 93, aff’d 2019 SCC 25,  2 S.C.R. 398.
 To summarize, the focus at the admissibility stage is on threshold, not ultimate reliability. The Starr/Mapara framework for determining the admissibility of hearsay evidence may be further developed as follows:
i. Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The onus is on the party tendering the evidence to show that it meets the requirements of a traditional exception or the principled approach.
ii. Evidence that falls under a traditional exception to the hearsay rule is presumptively admissible as traditional exceptions embody circumstantial guarantees of trustworthiness. (In the case of a spontaneous utterance exception, the inherent reliability stems from the requirement that the statement was made contemporaneously with a startling event that dominates the mind.)
a. In “rare cases” however, evidence falling within an existing traditional exception may be excluded because there are “special features” such that the hearsay statement does not meet the requirements of the principled approach in the particular circumstances of the case. The onus rests on the party resisting admission.iii. Hearsay evidence that does not fall under a traditional exception may still be admitted under the principled approach if sufficient indicia of necessity and threshold reliability are established on a voir dire on a balance of probabilities. This is established by satisfying the following criteria:
b. In the context of the spontaneous utterance exception, the basis for asserting a “rare cases” exception includes circumstances of gross intoxication, highly impaired vision, and exceptionally difficult viewing conditions, which are sufficiently grave that the trial judge cannot exclude the possibility of error or inaccuracy on a balance of probabilities. However, the “rare cases” exception does not include weaknesses that go to the ultimate reliability of the evidence or reliability concerns that are inherent in the traditional exception.
a. Threshold reliability (or reliability for the purpose of admission into evidence only) may be established through procedural reliability, substantive reliability, or both.
b. To establish procedural reliability, there must be adequate substitutes for testing the evidence and negating the hearsay dangers arising from a lack of oath, presence, and cross-examination. Procedural reliability is concerned with whether there is a satisfactory basis to rationally evaluate the statement.
c. To establish substantive reliability, the circumstances surrounding the statement itself must provide sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy. This is a functional inquiry. Substantive reliability is concerned with whether there is a rational basis to reject alternative explanations for the statement, other than the declarant’s truthfulness or accuracy. Where hearsay evidence has sufficient features of substantive reliability, there is no need to consider any extrinsic evidence that corroborates or conflicts with the statement. Courts should be wary not to turn the principled approach into a “rigid pigeon-holing analysis”: Khelawon, at paras. 44-45.
d. If substantive reliability is still lacking after examining the circumstances surrounding the statement, trial judges can rely on corroborative evidence to establish substantive reliability only if the corroborative evidence meets the criteria set out by the Supreme Court in Bradshaw.
e. The process set out in Bradshaw is as follows: (i) identify the material aspects of the hearsay statement tendered for its truth, (ii) identify the hearsay dangers raised, (iii) consider alternative, even speculative, explanations for the statement, and (iv) determine whether 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.