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R. v. Blackman, 2008 SCC 37, [2008] 2 SCR 298  Can LII


The accused was charged with first degree murder following the shooting death of E.  The shooting took place in April 2001.  The Crown’s theory at trial was that the accused shot E in retaliation for a previous incident in which E had stabbed the accused.  The Crown further alleged that the accused, together with two other men, had tried unsuccessfully to kill E two months before the fatal shooting.  A voir dire was held to determine the admissibility of statements made by E to his mother in the weeks leading up to his death.  In these statements, E told his mother that he had stabbed a man following a dispute over a pool debt in July 2000 and that he had been shot outside a strip club in February 2001 by three men,  the “guys whom he had the problem with” in July 2000.  


E’s statements are admissible under the principled approach to hearsay.  The Crown has established the twin criteria of necessity and reliability on a balance of probabilities.  Necessity is made out of E’s death.  

The reliability criterion is usually met by showing that sufficient trust can be put in the truth and accuracy of the statements because of the way in which they came about, or by showing that in the circumstances the ultimate trier of fact will be in a position to sufficiently assess their worth.  


The trial judge must start from the premise that hearsay statements are presumptively inadmissible and then search for indicia of trustworthiness sufficient to displace the general exclusionary rule.  Otherwise, the trial judge risks falling into error by reversing the onus.  Here,  the trial judge applied the correct test.  Although his comments about there being nothing “inherently unreliable” about the statements are cause for concern, these concerns are sufficiently alleviated when the comments are read in context.  In addition, it is apparent from a reading of the ruling in its entirety that the trial judge relied on relevant factors in admitting the statements.  The trial judge’s ruling was reasonable and supported by the evidence and is therefore entitled to deference. [33-35] [38] [52]

The focus of the admissibility inquiry in all cases must be on the particular dangers arising from the hearsay nature of the evidence.  

There is no doubt that the presence or absence of a motive to lie is a relevant consideration in assessing whether the circumstances in which the statements came about provide sufficient comfort in their truth and accuracy to warrant admission.  Motive, however, is but one factor to consider in determining threshold reliability, albeit one which may be significant depending on the circumstances.  In this case, there was circumstantial evidence to support the inference that E had no motive to lie to his mother.  The trial judge considered the relevant factors in determining whether E had a motive to fabricate, including the nature of the relationship between E and his mother and the context in which the statements were made.  His approach reveals no error.  In the absence of any error in principle, or a finding that the trial judge’s decision is unreasonable or unsupported by the evidence, there is no basis to interfere with his weighing of the various factors. [42-43][46]

While there were inconsistencies in the mother’s evidence and there was also evidence that she had received information from others about the stabbing incident, the trial judge was correct in finding that the difficulties with her evidence were matters properly left to the ultimate trier of fact, because she was available to be cross-examined at trial.  The triers of fact were therefore in a position to fully assess the truthfulness and accuracy of her testimony. [47] [50]

In appropriate circumstances, a corroborative item of evidence can be considered in assessing the threshold reliability of a statement.  However, trial judges must be aware of the limited role they play in determining admissibility.  It is essential to the integrity of the fact-finding process that the question of ultimate reliability not be pre-determined on the admissibility voir dire.  The voir dire must remain focussed on the hearsay evidence in question.  It is not intended, and cannot be allowed by trial judges, to become a full trial on the merits. [55-57]

Jim O'Neil, LL.B.

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