SCC re-calibrates hearsay test.

"Two people were shot to death. Suspected by police, T became the target of a Mr. Big investigation, during which he told an undercover officer that he shot both victims. He then told Mr. Big that he had shot one victim and that B had shot the other. T was arrested. When he later re‑enacted the murders for police, he implicated B in both. T and B were charged with two counts of first degree murder and T pled guilty to second degree murder. Because T refused to give sworn testimony at B’s trial, the Crown sought to admit into evidence T’s re‑enactment, which had been video‑recorded. Following a voir dire, the trial judge admitted the re‑enactment, under the principled exception to the hearsay rule. A jury convicted B on two counts of first degree murder. The Court of Appeal allowed the appeal, set aside B’s convictions and ordered a new trial."

The S.C.C. (5:2)
dismissed the appeal.

Justice Karakatsanis wrote as follows (at paras. 1, 3-4, 24-25, 32, 41, 57, 95-97):

"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.

...When can a trial judge rely on corroborative evidence to conclude that the threshold reliability of a hearsay statement is established?

...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.


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).

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.

...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.


In short, in the hearsay context, the difference between threshold and ultimate reliability is qualitative, and not a matter of degree, because the trial judge’s inquiry serves a distinct purpose. In assessing substantive reliability, the trial judge does not usurp the trier of fact’s role. Only the trier of fact assesses whether the hearsay statement should ultimately be relied on and its probative value.


In sum, 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 statement in the particular circumstances of the case.
  3. Based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement.
  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.


This is not a case where the hearsay “presents minimal dangers and its exclusion, rather than its admission, would impede accurate fact finding” (Khelawon, at para. 2 (emphasis in original)). Rather, admitting the re-enactment statement would undermine the truth-seeking process and trial fairness. Hearsay is presumptively inadmissible and the trial judge erred in finding that this presumption was rebutted.

I conclude that the trial judge erred in admitting the re-enactment statement into evidence. The Crown failed to establish the threshold reliability of this statement on a balance of probabilities.

I would dismiss the appeal. I agree with the British Columbia Court of Appeal that the convictions be set aside and a new trial ordered."

Justice Moldaver (in dissent, with Justice Côté concurring) wrote as follows (at paras. 99-101, 119-121, 128, 131, 148-149, 153, 174-175, 180):

"My colleague, Karakatsanis J., concludes that the trial judge erred... She reaches this conclusion on the basis of a restrictive new test that departs from the functional approach to threshold reliability which this Court has endorsed in its modern jurisprudence.

With respect, I disagree with my colleague’s approach and her conclusion. I acknowledge that Mr. Thielen’s re-enactment was not problem-free and that hearsay dangers are generally more pronounced when a declarant is not available to be cross-examined. However, this was an unusual case, in that there was exceptionally powerful corroborative evidence, including surreptitiously recorded conversations in which Mr. Bradshaw admitted his involvement in the two murders. In addition, the trial judge adopted a number of procedural safeguards which placed the jury in a position to critically evaluate the impugned evidence. These included the limited admission of prior inconsistent statements taken by police officers along with the opportunity to cross-examine them, strict cautionary instructions to the jury and wide latitude given to defence counsel to canvass the same points in his closing submissions that he would have canvassed had he been able to cross-examine Mr. Thielen.

In conjunction, these factors — powerful corroborative evidence and procedural safeguards — were capable of satisfying the test for threshold reliability. The principled approach to hearsay should not stand in the way of the truth-seeking function of a trial where the impugned evidence is shown to be trustworthy and the jury has the tools it needs to critically evaluate its ultimate reliability. This was the conclusion of the trial judge, who was uniquely positioned to make this determination. In my view, his ruling admitting the video re-enactment was amply supported by the record and error-free. I see no basis in fact or law to interfere with it.


Respectfully, my colleague’s test gives rise to two difficulties. First, her test would replace the functional approach that this Court has repeatedly endorsed, with a restrictive test that unnecessarily complicates the analysis and discards crucial information for evaluating threshold reliability. The functional approach emphasizes that there is no bright-line distinction between factors that inform threshold and ultimate reliability. Rather, the inquiry is focused on whether the extrinsic evidence addresses hearsay dangers by providing information about whether the statement is trustworthy...

My colleague’s approach instead creates a “threshold test within the threshold test”...

Second, in applying her approach, my colleague parses the analysis by examining whether each individual piece of corroborative evidence demonstrates that the “only likely explanation” is the declarant’s truthfulness. This ignores the reality that even if an individual piece of extrinsic evidence does not satisfy my colleague’s requirement on its own, it may nonetheless work in conjunction with other extrinsic evidence or features of substantive reliability to satisfy the test for threshold reliability (see R. v. McNamara (No. 1) (1981), 56 C.C.C. (2d) 193 (Ont. C.A.), at pp. 278-79, points 4 and 5, on the nature of corroborative evidence in general). Yet according to her test, for a piece of corroborative evidence to make its way onto the evidentiary scale for threshold reliability purposes, it must effectively be independently capable of tipping the scale. This restrictive test fails to look at the picture as a whole and discards corroborative evidence that could play an important role in satisfying threshold reliability.


My colleague does not consider or address several safeguards referred to above upon which the trial judge relied. In particular, she rejects the viability of jury instructions as a procedural safeguard, asserting that “[i]nstructing a jury on how to evaluate a statement that it [the jury] lacks the means to evaluate does not address the hearsay dangers that underlie the exclusionary rule” (para. 29). In my respectful view, this statement oversimplifies the issue.


Ultimately, my colleague’s unwillingness to consider the various procedural safeguards relied upon by the trial judge in this case leads her to conclude that, because the hearsay statement does not have sufficient features of substantive reliability, it cannot be admitted. With respect, this skirts the third way of establishing threshold reliability — the one applied by the trial judge in this case — in which features of substantive and procedural reliability may, in conjunction, justify the admission of a hearsay statement.


Reading [recorded] conversations in their entirety, there can be no doubt that Mr. Thielen and Mr. Bradshaw were implicitly — and at times overtly — discussing their joint involvement in the two murders. This provides powerful corroborative evidence that significantly enhances the substantive reliability of the re-enactment by alleviating concerns about Mr. Thielen’s sincerity.

For my colleague, however, these conversations provide “no assistance” in establishing substantive reliability (para. 84) — a remarkable proposition that no one advanced in the proceedings below or before this Court. In her view, Mr. Thielen’s truthfulness is not the only likely explanation for the conversations — a conclusion which rests squarely on her second-guessing the trial judge’s factual assessment of the conversations and speculating about “outside influence” as a “possible explanation” for them (para. 84).


If these conversations do not qualify as corroborative evidence supporting a hearsay statement’s substantive reliability, then I am at a loss to know what would. Even on the basis of my colleague’s restrictive test, they clearly qualify. The only plausible — and certainly the “only likely” — explanation for Mr. Bradshaw’s admissions was that he participated in the two murders. It follows, in my view, that the trial judge did not err in relying on Mr. Bradshaw’s admissions as powerful corroboration of the truthfulness of Mr. Thielen’s re-enactment.


I share the sentiment expressed by L’Heureux-Dubé J. in dissent in R. v. Noël, 2002 SCC 67, [2002] 3 S.C.R. 433, at para. 145, that courts should trust juries to make proper use of admissible evidence or risk “demean[ing] the jury by suggesting that they are incapable of properly dealing with [the] evidence. Our faith in the jury system is a hollow one if such an attitude is allowed to prevail.”

In this case, I am satisfied and agree with the trial judge that the re-enactment met the test for threshold reliability on the basis of strong features of substantive reliability, supplemented by sufficient features of procedural reliability. The trial judge was uniquely positioned to make this determination. And, contrary to my colleague’s assertions, his analysis discloses no legal error. As a result, his ruling is entitled to deference.


Respectfully, in my view, it is not the role of this Court to second guess the trial judge’s reasonably exercised judgment from a position far removed from the trial setting. Doing so betrays both the deference owed to trial judges and the trust and confidence placed in juries to follow instructions and use their common sense and reason to evaluate evidence."

Note: The summary and body are drawn from Eugene Meehan’s SupremeAdvocacy Weekly Updates for the Law Community.