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Evidence - Hearsay - Principled Exception (5)

. R. v. Charles

In R. v. Charles (SCC, 2024) the Supreme Court of Canada allowed a defendant's criminal appeal, here addressing the 'threshold reliability' element of principled exception to the hearsay evidence rule.

Here the court authoritatively explores the procedural and substantive aspects of threshold reliability:

B. General Principles Concerning the Admissibility of Hearsay Evidence

[43] Hearsay evidence is presumptively inadmissible (see, e.g., Bradshaw, at paras. 1 and 21). Its presumptive inadmissibility is due to the fact that it is often difficult to assess the truth of a statement made outside the courtroom. In Bradshaw, Karakatsanis J. explained that, 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” (para. 20). However, “[t]he truth‑seeking process of a trial is predicated on the presentation of evidence in court” (Bradshaw, at para. 19), and “our adversary system is based on the assumption that sources of untrustworthiness or inaccuracy can best be brought to light under the test of cross‑examination” (Khelawon, at para. 48). It is “mainly because of the inability to put hearsay evidence to that test” that such evidence is presumptively inadmissible (Khelawon, at para. 48; see also Bradshaw, at para. 1).

[44] The admission of hearsay may therefore “compromise trial fairness and the trial’s truth‑seeking process” (Bradshaw, at para. 20). It is possible that the statement has been “inaccurately recorded, and the trier of fact cannot easily investigate the declarant’s perception, memory, narration, or sincerity” (Bradshaw, at para. 20, citing Khelawon, at para. 2). There is thus a risk that such evidence “may be afforded more weight than it deserves” (Bradshaw, at para. 21, quoting Khelawon, at para. 35).

[45] That being said, in some circumstances, hearsay evidence “presents minimal dangers and its exclusion, rather than its admission, would impede accurate fact finding” (Khelawon, at para. 2 (emphasis in original), quoted in Bradshaw, at para. 22). Over time, the case law therefore developed categorical exceptions to the exclusionary rule and, ultimately, a more flexible approach. 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” (Bradshaw, at para. 23, citing Khelawon, at para. 47). To establish the threshold reliability of a statement, a party may demonstrate its procedural or substantive reliability.

[46] Procedural reliability is established when there are adequate substitutes for testing the truth and accuracy of the statement “given that the declarant has not ‘state[d] the evidence in court, under oath, and under the scrutiny of contemporaneous cross‑examination’” (Bradshaw, at para. 28, quoting Khelawon, at para. 63). Triers of fact must have “a satisfactory basis . . . to rationally evaluate the truth and accuracy of the hearsay statement” (Bradshaw, at para. 28). Substitutes for the traditional safeguards “include a video recording of the statement, the presence of an oath, and a warning about the consequences of lying” (Bradshaw, at para. 28, citing R. v. B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740, at pp. 795‑96). Some form of cross‑examination of the declarant, such as preliminary inquiry testimony, is usually required (Bradshaw, at para. 28).

[47] Substantive reliability is established when the statement is inherently trustworthy. To determine whether this is the case, trial judges may consider the circumstances in which the statement was made as well as the evidence that corroborates or conflicts with it. The standard is a high one (Bradshaw, at para. 31). That being said, it is not necessary for reliability to be established with absolute certainty. Rather, judges 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, quoted in Bradshaw, at para. 31). In other words, the evidence must be “sufficiently reliable to overcome the dangers arising from the difficulty of testing it” (Bradshaw, at para. 26, quoting Khelawon, at para. 49). As Karakatsanis J. explained in Bradshaw, at para. 31:

Substantive reliability is established when the statement “is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken” ([R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915], at p. 933); “under such circumstances that even a sceptical caution would look upon it as trustworthy” (Khelawon, at para. 62, citing [J. H. Wigmore, Evidence in Trials at Common Law (2nd ed. 1923), vol. III], 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 ([R. v. U. (F.J.), 1995 CanLII 74 (SCC), [1995] 3 S.C.R. 764], at para. 40).

[48] In the criminal context, “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” (Bradshaw, at para. 24). By ensuring that only hearsay that is necessary and reliable is admitted, “the trial judge acts as an evidentiary gatekeeper. She protects trial fairness and the integrity of the truth‑seeking process” (para. 24).

C. Use of the Search Results in the Threshold Reliability Analysis

[49] Recall that, to determine whether “corroborative evidence is of assistance in the substantive reliability inquiry”, a 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.

(Bradshaw, at para. 57)

....

[54] At the threshold reliability stage, “not all evidence that corroborates the declarant’s credibility, the accused’s guilt, or one party’s theory of the case, is of assistance” (Bradshaw, at para. 44). Accordingly, one can “only rely on 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” (para. 44). The function of corroborative evidence is thus to “mitigate the need for cross‑examination, not generally, but on the point that the hearsay is tendered to prove” (para. 45 (emphasis in original)).

[55] It is true that it is the combined effect of the corroborative evidence and the circumstances of the case, and not the evidence taken in isolation, that must rule out plausible alternative explanations for the material aspects of the statement (see Bradshaw, at para. 47). However, this does not mitigate the need for a connection between the evidence and the aspect sought to be proved. In the absence of such a connection, the evidence is quite simply of no assistance in determining whether that specific aspect is true or accurate; it merely corroborates the declarant’s credibility, the accused’s guilt or one party’s theory of the case, which is not sufficient (see Bradshaw, at para. 44; see also paras. 45‑46 and 72). Evidence that is not connected with the material aspects of the statement is therefore not capable, even in combination with the circumstances of the case, of ruling out plausible alternative explanations for those aspects.

[56] It follows that evidence that confirms one material aspect of a statement is not necessarily admissible to establish the statement’s reliability with respect to its other material aspects. When evidence merely confirms one material aspect of a statement and no more, the support it provides for other material aspects derives entirely from the fact that it boosts the declarant’s credibility. This holds true regardless of the materiality of the aspect of the statement that is confirmed by the evidence. As established in Bradshaw, it is not sufficient for evidence to support the declarant’s credibility generally, and such evidence cannot be used to assess the admissibility of other aspects of the statement.

[57] On the other hand, there may conceivably be situations in which several aspects of a statement are connected, such that evidence that demonstrates the truth or accuracy of one aspect is also capable of ruling out the possible explanations for the others. In such a case, the evidence is sufficiently — albeit indirectly — connected with those other aspects. Such evidence may then be of assistance in analyzing the statement’s admissibility with respect to all of those aspects.

[58] Contrary to what my colleagues suggest, it is not a matter of adding a step that involves splitting up the evidence to the approach established in Bradshaw. Rather, that approach and its underlying logic are what require a connection between the evidence and each aspect of the statement that it is supposed to confirm. The Bradshaw framework serves to ensure that corroborative evidence is used only in cases where it bears on the aspect sought to be proved by adducing the statement. The requirement for a connection between the corroborative evidence and the aspect in question flows from the role that such evidence must play. Corroborative evidence must make it possible, given the circumstances of the case, to rule out plausible explanations other than the truth or accuracy of the material aspects of the statement (para. 57, point 4).

[59] While at first glance it may seem pedantic to deal with each material aspect separately, it is important to note that the Bradshaw criteria are designed to overcome the dangers posed by corroborative evidence. Where a statement does not have indicia of reliability of its own, “then it can add nothing to a case, but it may appear to do so if it is consistent with other evidence. Admitting a hearsay statement only because it is consistent with other evidence treats it as a makeweight: the statement would be added to the other evidence even though its own weight actually depends entirely on that other evidence” (D. M. Paciocco, P. Paciocco and L. Stuesser, The Law of Evidence (8th ed. 2020), at p. 167). Moreover, “it can be difficult to control the length and complexity of the admissibility voir dire if the reliability of the hearsay statement derives from other evidence. Where the search for consistency is taken too far, the admissibility voir dire can easily become a time‑consuming shadow trial” (p. 167).

[60] Karakatsanis J. addressed these issues in developing the Bradshaw analytical framework. She explained that in order to preserve “the distinction between threshold and ultimate reliability and to prevent the voir dire from overtaking the trial”, it must be possible to distinguish between evidence that is admissible to establish threshold reliability and evidence that is admissible in the main trial (para. 42). Furthermore, “[l]imiting the use of corroborative evidence as a basis for admitting hearsay also mitigates the risk that inculpatory hearsay will be admitted simply because evidence of the accused’s guilt is strong” (para. 42). Indeed, “[t]he stronger the case against the accused, the easier it would be to admit flawed and unreliable hearsay against him” (para. 42). The particular role of corroborative evidence in the analysis of threshold reliability informs the limitations on its use:

The limited inquiry into corroborative evidence flows from the fact that, at the threshold reliability stage, corroborative evidence is used in a manner that is qualitatively distinct from the manner in which the trier of fact uses it to assess the statement’s ultimate reliability. As Lederman, Bryant and Fuerst explain, at the threshold reliability stage,

[t]he use of corroborative evidence should be directed to the reliability of the hearsay. Certain items of evidence can take on a corroborative character and be supportive of the Crown’s theory when considered in the context of the evidence as a whole. Such evidence relates to the merits of the case rather than to the limited focus of the voir dire in assessing the trustworthiness of the statement and is properly left to the ultimate trier of fact.

(S. N. Lederman, A. W. Bryant and M. K. Fuerst, The Law of Evidence in Canada (4th ed. 2014), at §6.140)

(Bradshaw, at para. 42)

[61] The standard articulated in Bradshaw is the product of a line of jurisprudence that fluctuated between various ways of dealing with corroborative evidence at the threshold reliability stage. At one point, this Court had even banned the use of such evidence (see R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at paras. 215 and 217), before holding in 2006 that it can be part of the analysis “in appropriate cases” (see Khelawon, at para. 4). Care must therefore be taken to preserve the balance struck by Bradshaw between the flexibility required by the principled exception and protection against the risks posed by corroborative evidence. The Crown’s position would undermine this balance; it would weaken a foundation of the Bradshaw approach, namely, the need to demonstrate a connection between the corroborative evidence and the material aspects of the statement.

. R. v. Salvati

In R. v. Salvati (Ont CA, 2024) the Ontario Court of Appeal considered the admissibility of a photocopy of a bail recognizance, to which the defence objected on grounds that: "the uncertified photocopy was not admissible under the Canada Evidence Act, R.S.C. 1985, c. C-5, and ... further that it was also inadmissible under the common law public or judicial documents exception to the hearsay rule":

[25] At trial, the Crown sought to tender as evidence an uncertified photocopy of the bail recognizance. The defence objected that the uncertified photocopy was not admissible under the Canada Evidence Act, R.S.C. 1985, c. C-5, and argued further that it was also inadmissible under the common law public or judicial documents exception to the hearsay rule, on the basis that a photocopy was not an “original record”. In response, the Crown submitted that the photocopy should be admitted under the principled exception to the hearsay rule. The trial judge agreed, and admitted the photocopy on this latter basis.

[26] On appeal, the appellant contends that the trial judge erred by relying on Crown counsel’s submissions to find that the necessity requirement of the principled exception had been established, and accordingly erred by admitting the document into evidence.

[27] The respondent agrees that in the circumstances of this case it was procedurally unfair for the trial judge to rely on the Crown’s submissions without giving the defence an opportunity to argue about whether the prosecution could rely on these submissions to establish necessity. However, the respondent argues that the photocopy was properly admissible on another legal basis that would not have required the Crown to establish necessity.

[28] We agree with the respondent that the photocopy was properly admissible under the common law public or judicial documents exception to the hearsay rule: see R. v. A.P. (1996), 1996 CanLII 871 (ON CA), 109 C.C.C. (3d) 385, at p. 390; R. v. W.B.C. (2000), 2000 CanLII 5659 (ON CA), 142 C.C.C. (3d) 490, at para. 32.

[29] The appellant’s argument at trial was that the photocopy was not admissible under this exception because it was not the “original” document that had been signed by the Justice of the Peace. However, the argument that the public or judicial documents exception does not apply to copies was rejected by this court in W.B.C., where Weiler J.A. explained at para. 39 (underlining added):

Another aspect of reliability is the need to establish the authenticity of the document. To be admissible at common law, the judicial document in question must be either (1) the original record; or (2) an exemplification of that record under the seal of the court: [R. v. Tatomir (1989), 1989 CanLII 7195 (AB CA), 51 C.C.C. (3d) 321 (Alta. C.A.)] at 327, citing Ewart, Documentary Evidence in Canada (1984), at 183, and Archbold: Criminal Pleading, Evidence and Practice, 43rd ed. (1988), at 1055. What is meant by “the original record”? Wigmore states that it has nothing to do with whether the writing in question was the "original" or "a copy". Rather, what is meant is that the written text itself must be offered as opposed to testimony about it. Wigmore concludes at vol. 4, pp. 547-9, para. 1232 of his treatise on Evidence:

Thus the terms “copy” and “original” being purely relative to each other, have no inherent relation to the present rule, and the term “original” has no real significance in indicating which paper it is (of all possible papers) whose production is required by the rule.

In order to state the rule, then, in terms which will indicate in the rule itself what documents are included in its scope, it must be noted that the production required is the production of the document whose contents are to be proved in the state of the issues. Whether or not that document was written before or after another, was copied from another, or was itself used to copy from, is immaterial. [Emphasis in original.]

[30] In the case at bar, there was evidence already in the trial record that circumstantially confirmed the authenticity of the photocopy. The Crown put into evidence certified copies of four Informations that showed that the appellant had indeed entered into a new bail order on August 28, 2018, which was the date shown on the photocopied recognizance. Moreover, photos taken by the police during their search of the house show what appears to be another copy of the same recognizance, seemingly identical except for a “copy” stamp, that was found in one of the basement bedrooms, along with a copy of the appellant’s health card.

[31] Importantly, the defence at trial did not make any substantive challenge to the authenticity of the photocopy, but simply argued that it was inadmissible under the public or judicial documents exception because it was not an “original”. The trial judge seems to have accepted this argument, and for this reason chose to instead admit the document under the principled exception, which required the Crown to establish both necessity and threshold reliability. In view of W.B.C., this latter step was unnecessary.

[32] The Crown submits that although the trial judge admitted the photocopy of the recognizance on the wrong legal basis, we should uphold the appellant’s conviction on the breach of recognizance charge by invoking the curative proviso. We do not find it necessary to resort to the curative proviso in these circumstances. Unlike the situation in W.B.C., the trial judge did not erroneously admit otherwise inadmissible evidence, but merely admitted evidence on one legal basis that was properly admissible for the same purpose on a slightly different legal basis. In our view, his decision to admit the photocopy into evidence for the truth of its contents was not a “wrong decision on a question of law” that would have required a new trial unless the curative proviso can be applied.

[33] Were it necessary to do so, however, we would have applied the curative proviso. The trial judge’s decision to admit the document under the principled exception without giving the appellant a fair opportunity to respond to the Crown’s position on the issue of necessity did not cause him any substantial wrong or miscarriage of justice, since the document was properly admissible under a traditional hearsay exception that did not require the Crown to establish necessity.