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R. v. Khelawon, 2006 SCC 57, [2006] 2 SCR 787  Can LII


Hearsay evidence is presumptively inadmissible unless an exception to the hearsay rule applies, primarily because of a general inability to test its reliability.  

The essential defining features of hearsay are the fact that the out-of-court statement is adduced to prove the truth of its contents and the absence of a contemporaneous opportunity to cross-examine the declarant.  Hearsay includes an out-of-court statement made by a witness who testifies in court if the statement is tendered to prove the truth of its contents.  

In some circumstances, hearsay evidence presents minimal dangers and its exclusion rather than its admission would impede accurate fact finding.  Hence over time a number of traditional exceptions to the exclusionary rule were created by the courts.  Hearsay evidence that does not fall under a traditional exception may still be admitted under the principled approach if indicia of reliability and necessity are established on a voir dire.  

The reliability requirement is aimed at identifying those cases where the concerns arising from the inability to test the evidence are sufficiently overcome to justify receiving the evidence as an exception to the general exclusionary rule.  

The reliability requirement will generally be met by showing (1) that there is no real concern about whether the statement is true or not because of the circumstances in which it came about;

or (2) that no real concern arises from the fact that the statement is presented in hearsay form because, in the circumstances, its truth and accuracy can nonetheless be sufficiently tested by means other than contemporaneous cross-examination.  These two principal ways of satisfying the reliability requirement are not mutually exclusive categories and they assist in identifying the factors that need to be considered on the admissibility inquiry. [2-3] [35] [37] [42] [49] [61-63] [65]

The trial judge acts as a gatekeeper in making the preliminary assessment of the threshold reliability of a hearsay statement and leaves the ultimate determination of its worth to the fact finder.  The factors to be considered on the admissibility inquiry cannot be categorized in terms of threshold and ultimate reliability.  Rather, all relevant factors should be considered including, in appropriate cases, the presence of supporting or contradictory evidence.  Comments to the contrary in previous decisions of this Court, including R. v. Starr, 2000 SCC 40 (CanLII), [2000] 2 S.C.R. 144, 2000 SCC 40, should no longer be followed.

In determining admissibility, the court should adopt a more functional approach focussed on the particular dangers raised by the hearsay evidence sought to be introduced and on those attributes or circumstances relied upon by the proponent to overcome those dangers.  Whether certain factors will go only to ultimate reliability will depend on the context.  In each case, the inquiry  is limited to determining the evidentiary question of admissibility.  Corroborating or conflicting evidence may be considered in the admissibility inquiry in appropriate cases.  When the reliability requirement is met on the basis that the trier of fact has a sufficient basis to assess the statement’s truth and accuracy, there is no need for the trial judge to inquire further into the likely truth of the statement.  When reliability is dependent on the inherent trustworthiness of the statement, the trial judge must inquire into those factors tending to show that the statement is true or not.  [2] [4] [92-93]

In determining the question of threshold reliability, the trial judge must be mindful that hearsay evidence is presumptively inadmissible.  The trial judge’s function is to guard against the admission of hearsay evidence which is unnecessary or the reliability of which is neither readily apparent from the trustworthiness of its contents nor capable of being meaningfully tested by the ultimate trier of fact.  If the proponent of the evidence cannot meet the twin criteria of necessity and reliability, the general exclusionary rule prevails.  In the context of a criminal case, the accused’s inability to test the evidence may impact on the fairness of the trial, thereby giving the rule a constitutional dimension.  As in all cases, the trial judge has a residual discretion to exclude admissible hearsay evidence where its prejudicial effect is out of proportion to its probative value. [2-3]

Jim O'Neil, LL.B.

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