Khelawon Changes to the General Exception to the Hearsay Rule

Issue In determining “reliability” on the second prong of the general exception test is evidence extrinsic to the circumstances surrounding the out of court statement admissible? In determining “reliability” on the second prong of the general exception test is evidence extrinsic to the circumstances surrounding the out of court statement admissible?

Answer Starr (2000) (SCC) – “no”, relevant to ultimate reliability only, not admissibility Starr (2000) (SCC) – “no”, relevant to ultimate reliability only, not admissibility Khan (1990) (SCC) – yes, presence of semen stain relevant to admissibility as confirmatory of reliability of out of court declaration Khan (1990) (SCC) – yes, presence of semen stain relevant to admissibility as confirmatory of reliability of out of court declaration Smith (1992) (SCC) – yes, declarant’s motive to lie relevant to admissibility Smith (1992) (SCC) – yes, declarant’s motive to lie relevant to admissibility U.(F.J.) (1995) (SCC) – yes, striking similarities between two out of court declarations relevant to admissibility U.(F.J.) (1995) (SCC) – yes, striking similarities between two out of court declarations relevant to admissibility

What’s New SCC today: “Reliability” can be made out in two ways: (a) Because of the way the statement came about (circumstances surrounding making of statement); or (b) If other circumstances permit the ultimate TOF to sufficiently assess its worth.

Para. 3: Para. 3: The trial judge’s function is to guard against the admission of hearsay evidence which is unnecessary in the context of the issue to be decided, or the reliability of which is neither apparent from the trustworthiness of its contents, nor capable of being meaningfully tested by the ultimate trier of fact.

Where does this leave the Threshold v. Ultimate Reliability Distinction? On the one hand para. 3: “The distinction between threshold and ultimate reliability reflects the important difference between admission and reliance.” On the one hand para. 3: “The distinction between threshold and ultimate reliability reflects the important difference between admission and reliance.”

On the other, para. 4: “…I have concluded that the factors to be considered on the admissibility inquiry cannot be categorized in terms of threshold and ultimate reliability. Comments to the contrary in previous decisions of this Court should no longer be followed. Rather, all relevant factors should be considered including, in appropriate cases, the presence of supporting or contradictory evidence. In each case, the scope of the inquiry must be tailored to the particular dangers presented by the evidence and limited to determining the evidentiary question of admissibility.” On the other, para. 4: “…I have concluded that the factors to be considered on the admissibility inquiry cannot be categorized in terms of threshold and ultimate reliability. Comments to the contrary in previous decisions of this Court should no longer be followed. Rather, all relevant factors should be considered including, in appropriate cases, the presence of supporting or contradictory evidence. In each case, the scope of the inquiry must be tailored to the particular dangers presented by the evidence and limited to determining the evidentiary question of admissibility.”

Facts Multiple assaults on different residents of a nursing home by the accused manager Multiple assaults on different residents of a nursing home by the accused manager At the time of the trial, 4 of 5 complainants had died, and the 5 th was incompetent to testify. At the time of the trial, 4 of 5 complainants had died, and the 5 th was incompetent to testify. Central issue: could their pre-trial (some videotaped) statements be admissible on a substantive basis to make out the assaults? Central issue: could their pre-trial (some videotaped) statements be admissible on a substantive basis to make out the assaults?

Held by TOL Admissible, their reliability coming from their “striking similarity” between each other: ie. applying U.(F.J.). Admissible, their reliability coming from their “striking similarity” between each other: ie. applying U.(F.J.).

Held By Ont. C.A. Inadmissible. Inadmissible. U.(F.J.) required the statements compared to each other for their consistency to be about the same event, and the declarant available for cross. All comparable statements must, as well, be admissible. Finally, as per Starr, corroborating evidence not admissible for threshold reliability. U.(F.J.) required the statements compared to each other for their consistency to be about the same event, and the declarant available for cross. All comparable statements must, as well, be admissible. Finally, as per Starr, corroborating evidence not admissible for threshold reliability.

Held by SCC Inadmissible, insufficient reliability including: Inadmissible, insufficient reliability including: (a) Questions as to the declarant’s mental competence; (b) Possible influence by a disgruntled employee and other motivations to fabricate; (c) Other potential causes for the injuries.

Held by SCC In these circumstances, the unavailability for cross posed serious limitations on the accused’s ability to test the evidence, and on the TOF’s ability to assess the evidence. In these circumstances, the unavailability for cross posed serious limitations on the accused’s ability to test the evidence, and on the TOF’s ability to assess the evidence. The remaining statements of the complainant’s had their own limitations and therefore could not assist in assessing the reliability of the others. The remaining statements of the complainant’s had their own limitations and therefore could not assist in assessing the reliability of the others.

Held by SCC In all the circumstances, particularly given that the Crown’s case was founded on the Hearsay statements, the admission of the evidence would impair the fairness of the trial. In all the circumstances, particularly given that the Crown’s case was founded on the Hearsay statements, the admission of the evidence would impair the fairness of the trial. Suggestion: should have been dealt with by way of commission evidence prior to death (preserving evidence of a witness who may not be around at trial, under oath, before a commissioner, in presence of parties, examination and cross). Suggestion: should have been dealt with by way of commission evidence prior to death (preserving evidence of a witness who may not be around at trial, under oath, before a commissioner, in presence of parties, examination and cross).

SCC on Reliability Neither K.G.B. nor U.F.J. should be treated as categorical exceptions, as such would be to fall into the “rigid pigeon- holing analysis” previously rejected. These cases provide guidance, not fixed categories. Neither K.G.B. nor U.F.J. should be treated as categorical exceptions, as such would be to fall into the “rigid pigeon- holing analysis” previously rejected. These cases provide guidance, not fixed categories.

Para. 49 “… the reliability requirement will generally be met on the basis of two different grounds, neither of which excludes consideration of the other.”

Basis #1 – Circumstances Surrounding Making of Statement Para. 49: “In some cases because of the circumstances in which it came about, the contents of the hearsay statement may be so reliable that contemporaneous cross- examination of the declarant would add little if anything to the process.” Para. 49: “In some cases because of the circumstances in which it came about, the contents of the hearsay statement may be so reliable that contemporaneous cross- examination of the declarant would add little if anything to the process.”

Basis #2 – Testing the Evidence Para 49: “In other cases, the evidence may not be so cogent but the circumstances will allow for sufficient testing of the evidence by means other than contemporaneous cross- examination.” Para 49: “In other cases, the evidence may not be so cogent but the circumstances will allow for sufficient testing of the evidence by means other than contemporaneous cross- examination.”

Threshold v. Ultimate Reliability: A Source of Confusion? Para. 50, the distinction must be made, only threshold reliability is to be enquired into on the voire dire Para. 50, the distinction must be made, only threshold reliability is to be enquired into on the voire dire

Starr (SCC) “Threshold reliability is concerned not with whether the statement is true or not; that is a question of ultimate reliability. Instead, it is concerned with whether or not the circumstances surrounding the statement itself provide circumstantial guarantees of trustworthiness.” “Threshold reliability is concerned not with whether the statement is true or not; that is a question of ultimate reliability. Instead, it is concerned with whether or not the circumstances surrounding the statement itself provide circumstantial guarantees of trustworthiness.”

Starr Cont’d “At the stage of hearsay admissibility the trial judge should not consider the declarant’s general reputation for truthfulness, nor any prior or subsequent statements, consistent or not. These factors do not concern the circumstances of the statement itself. Similarly, I would not consider the presence of corroborating or conflicting evidence.” “At the stage of hearsay admissibility the trial judge should not consider the declarant’s general reputation for truthfulness, nor any prior or subsequent statements, consistent or not. These factors do not concern the circumstances of the statement itself. Similarly, I would not consider the presence of corroborating or conflicting evidence.”

Khelawon Para. 52 “While it is clear that the trial judge does not determine whether the statement will ultimately be relied upon as true, it is not so clear that in every case threshold reliability is not concerned with whether the statement is true or not. Indeed, in U. (F.J.), the rationale for admitting the complainant’s hearsay statement was based on the fact that “the only likely explanation” for its striking similarity with the independent statement of the accused was that “they were both telling the truth.” Para. 52 “While it is clear that the trial judge does not determine whether the statement will ultimately be relied upon as true, it is not so clear that in every case threshold reliability is not concerned with whether the statement is true or not. Indeed, in U. (F.J.), the rationale for admitting the complainant’s hearsay statement was based on the fact that “the only likely explanation” for its striking similarity with the independent statement of the accused was that “they were both telling the truth.”

Khelawon Para. 53 “Further, it is not easy to discern what is or is not a circumstance “surrounding the statement itself.” Para. 53 “Further, it is not easy to discern what is or is not a circumstance “surrounding the statement itself.” Assertion that “motive to fabricate” is evidence outside the statement itself (but is it not, by definition a circumstance surrounding the statement, as it is acting on the mind of the declarant at the time of making the statement?) Assertion that “motive to fabricate” is evidence outside the statement itself (but is it not, by definition a circumstance surrounding the statement, as it is acting on the mind of the declarant at the time of making the statement?)

Khelawon Para 54: “Much of the confusion in this area of the law has arisen from the attempt to categorically label some factors as going only to ultimate reliability. The bar against considering “corroborating or conflicting evidence”, because it is only relevant to the question of ultimate reliability, is a further example. Quite clearly, the corroborative nature of the semen stain in Khan played an important part in establishing the threshold reliability of the child’s hearsay statement in that case.” Para 54: “Much of the confusion in this area of the law has arisen from the attempt to categorically label some factors as going only to ultimate reliability. The bar against considering “corroborating or conflicting evidence”, because it is only relevant to the question of ultimate reliability, is a further example. Quite clearly, the corroborative nature of the semen stain in Khan played an important part in establishing the threshold reliability of the child’s hearsay statement in that case.”

Para. 55 “ …the relevant factors to be considered on admissibility cannot invariably be categorized as relating to either threshold or ultimate reliability. Rather, the relevance of any particular factor will depend on the particular dangers arising from the hearsay nature of the statement and the available means, if any, of overcoming them.” Para. 55 “ …the relevant factors to be considered on admissibility cannot invariably be categorized as relating to either threshold or ultimate reliability. Rather, the relevance of any particular factor will depend on the particular dangers arising from the hearsay nature of the statement and the available means, if any, of overcoming them.”

Re-Focusing Hearsay Definition to Suit New Rule? Para 61: “Since the central underlying concern is the inability to test hearsay evidence, it follows that under the principled approach the reliability requirement is aimed at identifying those cases where this difficulty is sufficiently overcome to justify receiving the evidence …” Para 61: “Since the central underlying concern is the inability to test hearsay evidence, it follows that under the principled approach the reliability requirement is aimed at identifying those cases where this difficulty is sufficiently overcome to justify receiving the evidence …”

Para. 62 One way is to show there is no real concern about whether the statement is true or not because of the circumstances in which it came about – in such circumstances, where cross-examination would add little as security, because its purposes had already been accomplished, it would be “pedantic” to insist on a test whose chief object is already secured. One way is to show there is no real concern about whether the statement is true or not because of the circumstances in which it came about – in such circumstances, where cross-examination would add little as security, because its purposes had already been accomplished, it would be “pedantic” to insist on a test whose chief object is already secured.

Khelawon ??? Para. 92: “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 to inquire further into the likely truth of the statement. That question becomes one that is left entirely for the ultimate trier of fact and the trial judge is exceeding his or her role by inquiring 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 – recall U.(F.J.)” Para. 92: “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 to inquire further into the likely truth of the statement. That question becomes one that is left entirely for the ultimate trier of fact and the trial judge is exceeding his or her role by inquiring 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 – recall U.(F.J.)”

Consistent with Hawkins? The SCC admitted the preliminary inquiry testimony of the now married witness in the trial of her spouse, despite the fact that she had contradicted herself on the stand, giving internally inconsistent versions. We were told then that this was a matter for ultimate, not threshold reliability. So the obvious lack of truthfulness of one half of the witness’ story is not a matter for admissibility, but if it was internally consistent or consistent with that of another witness it would be? The SCC admitted the preliminary inquiry testimony of the now married witness in the trial of her spouse, despite the fact that she had contradicted herself on the stand, giving internally inconsistent versions. We were told then that this was a matter for ultimate, not threshold reliability. So the obvious lack of truthfulness of one half of the witness’ story is not a matter for admissibility, but if it was internally consistent or consistent with that of another witness it would be?

Para. 93 “…whether certain factors will go only to ultimate reliability will depend on the context … Relevant factors should not be characterized in terms of threshold and ultimate reliability.” Para. 93 “…whether certain factors will go only to ultimate reliability will depend on the context … Relevant factors should not be characterized in terms of threshold and ultimate reliability.”

Idaho v. Wright USSC Held: not persuaded that evidence corroborating the truth of a hearsay statement may properly support a finding that the statement bears particularized guarantees of trustworthiness. The use of corroborating evidence for that purpose would permit admission of a presumptively unreliable statement by bootstrapping on the trustworthiness of other evidence at trial. Held: not persuaded that evidence corroborating the truth of a hearsay statement may properly support a finding that the statement bears particularized guarantees of trustworthiness. The use of corroborating evidence for that purpose would permit admission of a presumptively unreliable statement by bootstrapping on the trustworthiness of other evidence at trial.

The majority expressed concerns, arising mostly in child sexual abuse cases, that a jury will rely on the partial corroboration provided by medical evidence to mistakenly infer the trustworthiness of the entire allegation. The majority expressed concerns, arising mostly in child sexual abuse cases, that a jury will rely on the partial corroboration provided by medical evidence to mistakenly infer the trustworthiness of the entire allegation.

Final Notes Para. 104: There was no evidence the Crown attempted to preserve the evidence of the declarant through, for example, commission evidence. In an appropriate case, the Court in deciding the question of necessity may well question whether the proponent of the evidence made all reasonable efforts to secure the evidence in a manner that also preserves the rights of the other party. Para. 104: There was no evidence the Crown attempted to preserve the evidence of the declarant through, for example, commission evidence. In an appropriate case, the Court in deciding the question of necessity may well question whether the proponent of the evidence made all reasonable efforts to secure the evidence in a manner that also preserves the rights of the other party.

Final Notes Para. 106: “The principled exception to the hearsay rule does not provide a vehicle for founding a conviction on the basis of a police statement – videotaped or otherwise – without more. In order to meet the reliability requirement in this case, the Crown could only rely on the inherent trustworthiness of the statement.” Para. 106: “The principled exception to the hearsay rule does not provide a vehicle for founding a conviction on the basis of a police statement – videotaped or otherwise – without more. In order to meet the reliability requirement in this case, the Crown could only rely on the inherent trustworthiness of the statement.”