R v Khelawon

Khelawon completed the move from rigid categorical exceptions to a principled approach to hearsay. Hearsay is admissible if it is necessary and threshold reliability is established by either procedural reliability, substantive reliability, or both.

Khelawon, a manager of a retirement home, was accused of assaulting elderly residents. Several victims died before trial; their out-of-court statements (some videotaped) were sought to be admitted.

How is threshold reliability of hearsay assessed?

Statements excluded; conviction overturned. Framework restated.

At the admissibility stage the trial judge assesses threshold reliability through (a) procedural reliability — adequate substitutes for testing in court (oath, contemporaneous recording, cross-examination on the statement, prior inconsistent statement framework), and/or (b) substantive reliability — circumstances that mean the statement is so unlikely to be inaccurate that contemporaneous cross-examination would add little. The two strands may interact. Ultimate reliability remains for the trier of fact.

Charron J reorganised the principled approach. The earlier separation of necessity, reliability and corroboration into watertight compartments was abandoned. Corroborative evidence is admissible to assess threshold reliability — Bradshaw later refines when.

Foundational hearsay decision. Bradshaw (2017) further constrains use of corroborating evidence and reinforces the ban on bootstrapping. Together, they govern modern Canadian hearsay analysis.

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

McLachlin CJ, Bastarache J, Binnie J, LeBel J, Deschamps J, Fish J, Abella J, Charron J, Rothstein J