R. v. Bradshaw

R. v. Bradshaw
Collection
Supreme Court Judgments
Date
2017-06-29
Neutral citation
2017 SCC 35
Report
[2017] 1 SCR 865
Case number
36537
Judges
McLachlin, Beverley; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Côté, Suzanne; Brown, Russell
On appeal from
British Columbia
Subjects
Criminal law
Notes
SCC Case Information: 36537
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865
Appeal Heard: November 3, 2016
Judgment Rendered: June 29, 2017
Docket: 36537
Between:
Her Majesty The Queen
Appellant
and
Robert David Nicholas Bradshaw
Respondent
- and -
Attorney General of Ontario, British Columbia Civil Liberties Association and Criminal Lawyers’ Association of Ontario
Interveners
Coram: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Côté and Brown JJ.
Reasons for Judgment:
(paras. 1 to 97)
Karakatsanis J. (McLachlin C.J. and Abella, Wagner and Brown JJ. concurring)
Dissenting Reasons:
(paras. 98 to 188)
Moldaver J. (Côté J. concurring)
R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865
Her Majesty The Queen Appellant
v.
Robert David Nicholas Bradshaw Respondent
and
Attorney General of Ontario,
British Columbia Civil Liberties Association and
Criminal Lawyers’ Association of Ontario Interveners
Indexed as: R. v. Bradshaw
2017 SCC 35
File No.: 36537.
2016: November 3; 2017: June 29.
Present: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Côté and Brown JJ.
on appeal from the court of appeal for british columbia
Criminal law — Evidence — Hearsay — Admissibility — Principled exception to hearsay rule — Trial judge admitting co‑accused’s hearsay statement into evidence — When can trial judge rely on corroborative evidence to conclude that threshold reliability of hearsay statement is established.
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.
Held (Moldaver and Côté JJ. dissenting): The appeal should be dismissed.
Per McLachlin C.J. and Abella, Karakatsanis, Wagner and Brown JJ.: Hearsay evidence is presumptively inadmissible because it is often difficult for the trier of fact to assess its truth. However, it can be admitted under the principled exception if the criteria of necessity and threshold reliability are met on a balance of probabilities.
In this case, the necessity of the hearsay evidence is established because T refused to testify. Thus, its admissibility rests on whether threshold reliability is met. Threshold reliability is established when the hearsay is sufficiently reliable to overcome the dangers arising from the difficulty of testing it. The hearsay dangers relate to the difficulties of assessing the declarant’s perception, memory, narration or sincerity. These dangers can be overcome by showing that (1) there are adequate substitutes for testing truth and accuracy (procedural reliability) or (2) that there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability). Substantive reliability is established when the statement is unlikely to change under cross‑examination. To determine whether substantive reliability is established, the trial judge can consider the circumstances in which the statement was made and evidence (if any) that corroborates or conflicts with the statement.
A trial judge can only rely on corroborative evidence to establish substantive reliability 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.
First, corroborative evidence must go to the truthfulness or accuracy of the material aspects of the hearsay statement. Since hearsay is tendered for the truth of its contents, corroborative evidence must go to the truthfulness or accuracy of the content of the statement that the moving party seeks to rely on.
Second, corroborative evidence must assist in overcoming the specific hearsay dangers raised by the tendered statement. Corroborative evidence does so if its combined effect, when considered in the circumstances of the case, shows 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. Otherwise, alternative explanations for the statement that could have been elicited or probed through cross‑examination, and the hearsay dangers, persist. Corroborative evidence is of assistance in establishing substantive reliability if it shows that alternative explanations for the statement are unavailable. In contrast, corroborative evidence that is equally consistent with the truthfulness and accuracy of the statement as well as another hypothesis is of no assistance. To be relied on for the purpose of rejecting alternative hypotheses, corroborative evidence must itself be trustworthy.
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 the statement in the particular circumstances of the case; (3) based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement; and (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.
The trial judge erred in relying significantly on corroborative evidence that was of no assistance in establishing substantive reliability to deem the re‑enactment statement admissible. The material aspect of the statement was T’s assertion that B participated in the murders. The specific danger raised by T’s statement was the inability of the trier of fact to assess whether T lied about B’s participation in the murders. T gave inconsistent statements about B’s participation. He also had a significant motive to lie to reduce his own culpability. Furthermore, T was a Vetrovec witness, a witness who cannot be trusted due to his unsavoury character. Given the hearsay dangers presented by the re‑enactment statement, an alternative explanation is that T lied about B’s participation in the murders. Therefore, corroborative evidence will only assist in establishing the substantive reliability of the re‑enactment statement if it shows, when considered in the circumstances of the case, that the only likely explanation is that T was truthful about B’s participation. Considered as a whole, the corroborative evidence relied on by the trial judge did not meet this standard. For example, while the weather evidence and forensic evidence showed that T accurately described the way the murders unfolded and the weather on the nights of the murders, this evidence does not mitigate the danger that T lied about B’s participation. Furthermore, while there are recordings of B admitting that he participated in the murders, there are concerns about the trustworthiness of these admissions. Much of the corroborative evidence relied on by the trial judge was probative of B’s guilt, and thus could be considered by the trier of fact in the trial on the merits, but none of it was of assistance in establishing the threshold reliability of the re‑enactment statement.
The threshold reliability of the hearsay statement is not otherwise established. Jury warnings about the dangers of hearsay evidence or Vetrovec testimony do not provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement. Instructing a jury on how to evaluate a statement that it lacks the means to evaluate does not address the hearsay dangers that underlie the exclusionary rule. Given that the trier of fact could not adequately test the trustworthiness of T’s statement, and there were no circumstances or corroborative evidence showing that this statement was inherently trustworthy, it should not have been admitted into evidence.
Per Moldaver and Côté JJ. (dissenting): The trial judge did not err in admitting T’s re‑enactment. His ruling was amply supported by the record and is entitled to deference.
The principled approach to hearsay recognizes that threshold reliability can be met in three ways: (1) where a statement has sufficient features of substantive reliability; (2) where the statement has adequate features of procedural reliability; or (3) where the statement does not satisfy either of the first two ways, but incorporates features of both which, in combination, justify its admission. Under this third way, where a statement has a sufficient level of trustworthiness, relative to the strength of the procedural safeguards for the trier of fact to evaluate its ultimate reliability, the statement is safe to admit.
In this case, T’s re‑enactment was admissible under the third way of establishing threshold reliability. The hearsay dangers at issue — sincerity along with memory and perception — were sufficiently overcome by powerful corroborative evidence indicating the statement’s trustworthiness and a number of procedural safeguards that provided the jury with the tools it needed to evaluate its truth and accuracy.
In reaching a different conclusion, the majority has departed from the functional approach to threshold reliability by unduly restricting the extrinsic evidence that a court can consider when assessing a statement’s substantive reliability and by adopting a narrow view of the procedural safeguards available at trial that can equip the jury with the tools it needs to assess the ultimate reliability of a statement.
The functional approach emphasizes that there is no bright‑line distinction between factors that inform threshold and ultimate reliability. For extrinsic evidence, the inquiry is focused on whether the evidence addresses hearsay dangers by providing information about whether the statement is trustworthy. The majority’s approach instead creates a threshold test within the threshold test, which unnecessarily complicates the analysis and discards extrinsic evidence that can be crucial for evaluating threshold reliability. Trial judges should be trusted to limit the scope of extrinsic evidence that can be considered in a hearsay voir dire on a case‑by‑case basis to ensure that the proceedings are not derailed.
In this unusual case, the corroborative evidence included surreptitiously recorded conversations in which B admitted his involvement in the murders, telephone records as circumstantial evidence implicating B in the murders and forensic evidence from the crime scenes confirming T’s account of the details of the murders. Considered cumulatively, this evidence provides powerful support for the trustworthiness of T’s re‑enactment. There was also circumstantial indicia of trustworthiness, including: the fact that the re‑enactment was voluntary and free flowing; that it was contrary to T’s interest, in that he did not attempt to shift blame to B but instead implicated himself in two counts of first degree murder; and that T’s alleged motivation to fabricate was rebutted by his prior consistent statement to Mr. Big. There is no evidence of any inducements or assurances made by the police prior to T’s re‑enactment, nor is there any information to suggest that T’s plea to second degree murder had anything to do with his participation in the re‑enactment.
As for procedural reliability, there is no principled distinction between safeguards in place at the time the hearsay statement was made and safeguards available at trial. Both enhance the ability of the trier of fact to critically evaluate the evidence. As in this case, the latter may include jury cautions, the limited admission of prior inconsistent statements that contradict the hearsay statement, requiring the Crown to call the police officers who took prior inconsistent statements as witnesses so that they can be cross‑examined by defence counsel, and permitting enhanced leeway for defence counsel during closing submissions. The trial judge is uniquely positioned to adapt and implement these measures based on the specific circumstances of the case.
The majority’s unwillingness to consider these various procedural safeguards relied upon by the trial judge in this case leads it to skirt 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.
In conjunction, the re‑enactment’s features of substantive and procedural reliability were capable of satisfying the test for threshold reliability. The trial judge made a difficult call in a close case. He was in the best position to make that call based on his assessment of the trustworthiness of the evidence and the jury’s ability to evaluate it. And his analysis discloses no legal error. As a result, his ruling is entitled to deference. It is not the role of the 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.
The trial judge’s refusal to admit T’s prior inconsistent statement given on May 15, 2010, for the truth of its contents is also entitled to deference. The trial judge applied the correct test and considered the relevant factors in finding this statement to be inadmissible. This included the fact that the statement was not video‑recorded, that it was contradicted by extrinsic evidence and that T had a strong incentive to exaggerate his involvement in the murders.
Ultimately, there is no reason to send this case back for a second trial. B had a fair trial before a properly instructed jury that was well positioned to critically evaluate the reliability of the re‑enactment. Accordingly, his two convictions for first degree murder should be restored.
Cases Cited
By Karakatsanis J.
Applied: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787; referred to: Vetrovec v. The Queen, [1982] 1 S.C.R. 811; R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544; R. v. B. (K.G.), [1993] 1 S.C.R. 740; R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520; R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720; R. v. Hawkins, [1996] 3 S.C.R. 1043; R. v. U. (F.J.), [1995] 3 S.C.R. 764; R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517; R. v. Smith, [1992] 2 S.C.R. 915; R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144; R. v. R. (D.), [1996] 2 S.C.R. 291; R. v. Khan, [1990] 2 S.C.R. 531; R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104; R. v. Smith, 2009 SCC 5, [2009] 1 S.C.R. 146; R. v. Salah, 2015 ONCA 23, 319 C.C.C. (3d) 373.
By Moldaver J. (dissenting)
R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787; R. v. Devine, 2008 SCC 36, [2008] 2 S.C.R. 283; R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, aff’g (2006), 84 O.R. (3d) 292; R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720; R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517; R. v. Khan, [1990] 2 S.C.R. 531; R. v. Hawkins, [1996] 3 S.C.R. 1043; R. v. B. (K.G.), [1993] 1 S.C.R. 740; R. v. Hamilton, 2011 ONCA 399, 271 C.C.C. (3d) 208; R. v. U. (F.J.), [1995] 3 S.C.R. 764; R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544; R. v. Abbey, 2009 ONCA 624, 246 C.C.C. (3d) 301; R. v. Carroll, 2014 ONCA 2, 304 C.C.C. (3d) 252; R. v. McNamara (No. 1) (1981), 56 C.C.C. (2d) 193; R. v. R. (T.), 2007 ONCA 374, 85 O.R. (3d) 481; R. v. Lowe, 2009 BCCA 338, 274 B.C.A.C. 92; R. v. Goodstoney, 2007 ABCA 88, 218 C.C.C. (3d) 270; R. v. Smith, 2009 SCC 5, [2009] 1 S.C.R. 146; R. v. Adjei, 2013 ONCA 512, 309 O.A.C. 328; R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272; R. v. Corbett, [1988] 1 S.C.R. 670; R. v. Carroll, 1999 BCCA 65, 118 B.C.A.C. 219; R. v. Noël, 2002 SCC 67, [2002] 3 S.C.R. 433; R. v. S. (S.), 2008 ONCA 140, 232 C.C.C. (3d) 158; R. v. Post, 2007 BCCA 123, 217 C.C.C. (3d) 225; R. v. Tash, 2013 ONCA 380, 306 O.A.C. 173; R. v. Kimberley (2001), 56 O.R. (3d) 18.
Authors Cited
Akhtar, Suhail. “Hearsay: The Denial of Confirmation” (2005), 26 C.R. (6th) 46.
Lacelle, Laurie. “The Role of Corroborating Evidence in Assessing the Reliability of Hearsay Statements for Substantive Purposes” (1999), 19 C.R. (5th) 376.
Lederman, Sidney N., Alan W. Bryant and Michelle K. Fuerst. The Law of Evidence in Canada, 4th ed. Markham, Ont.: LexisNexis, 2014.
Paciocco, David M., and Lee Stuesser. The Law of Evidence, 7th ed. Toronto: Irwin Law, 2015.
Stewart, Hamish. “Khelawon: The Principled Approach to Hearsay Revisited” (2008), 12 Can. Crim. L.R. 95.
Wigmore, John Henry. A treatise on the Anglo‑American System of Evidence in Trials at Common Law, vol. III, 2nd ed. Boston: Little, Brown and Co., 1923.
APPEAL from a judgment of the British Columbia Court of Appeal (Neilson, Bennett and Garson JJ.A.), 2015 BCCA 195, 323 C.C.C. (3d) 475, 372 B.C.A.C. 77, 640 W.A.C. 77, 20 C.R. (7th) 398, [2015] B.C.J. No. 884 (QL), 2015 CarswellBC 1168 (WL Can.), setting aside the accused’s convictions for first degree murder and ordering a new trial. Appeal dismissed, Moldaver and Côté JJ. dissenting.
Margaret A. Mereigh and David Layton, for the appellant.
Richard S. Fowler, Q.C., Eric Purtzki and Karin Blok, for the respondent.
Michael Bernstein, for the intervener the Attorney General of Ontario.
Greg J. Allen, for the intervener the British Columbia Civil Liberties Association.
Louis P. Strezos and Samuel Walker, for the intervener the Criminal Lawyers’ Association of Ontario.
The judgment of McLachlin C.J. and Abella, Karakatsanis, Wagner and Brown JJ. was delivered by
Karakatsanis J. —
I. Introduction
[1] 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.
[2] In this case, the Crown tendered hearsay from Roy Thielen, an accomplice, implicating Robert Bradshaw, the accused, in two murders. The trial judge ruled that this hearsay statement was admissible. The Court of Appeal allowed the appeal and ordered a new trial.
[3] The following issue arises in this appeal: When can a trial judge rely on corroborative evidence to conclude that the threshold reliability of a hearsay statement is established?
[4] In my view, 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.
[5] Here, the hearsay statement was tendered for the truth of Thielen’s claim that Bradshaw participated in the murders. The specific hearsay danger raised by Thielen’s statement was the inability of the trier of fact to assess whether Thielen lied about Bradshaw’s participation in the murders. In addition to the reliability dangers that are inherent in all hearsay statements, there are specific reasons to be concerned that Thielen lied. Thielen had a motive to lie to shift the blame to Bradshaw. Thielen previously said that he had shot both victims, and had not implicated Bradshaw. Furthermore, Thielen was a Vetrovec witness, a witness who cannot be trusted to tell the truth due to his unsavoury character (Vetrovec v. The Queen, [1982] 1 S.C.R. 811).
[6] The trial judge relied significantly on the existence of corroborative evidence to deem Thielen’s statement admissible. However, the evidence he relied on did not, when considered in the circumstances of the case, show that the only likely explanation was that Thielen was truthful about Bradshaw’s involvement in the murders. It did not substantially negate the possibility that Thielen lied about Bradshaw’s participation in the murders. While this corroborative evidence may increase the probative value of the re-enactment statement if admitted, it is of no assistance in assessing the statement’s threshold reliability. The trial judge therefore erred in relying on this corroborative evidence.
[7] Given that the trier of fact could not adequately test the trustworthiness of Thielen’s statement, and there were no circumstances or corroborative evidence showing that this statement was inherently trustworthy, it should not have been admitted into evidence.
[8] For the reasons that follow, I would dismiss the appeal.
II. Background
[9] Laura Lamoureux and Marc Bontkes were killed in March 2009, five days apart. The police suspected that Thielen was involved in both murders. They ran a Mr. Big operation targeting Thielen. In a Mr. Big operation, undercover officers recruit a suspect into a fictitious criminal organization for the purpose of eliciting a confession from him (R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544, at para. 85). The officers befriend the suspect and demonstrate that membership in the criminal organization provides rewards and friendship. The suspect discovers that his membership is conditional on a confession to the crime boss, Mr. Big (Hart, at paras. 1-2).
[10] As part of the Mr. Big operation, Thielen went on a road trip with Cst. B., an undercover agent, in May 2010. During the road trip, Thielen told Cst. B. that he had shot both Lamoureux and Bontkes.
[11] In July 2010, Thielen met an undercover agent posing as the crime boss. During this meeting, Thielen said that he had shot Lamoureux but that “Paulie” and Michelle Motola had shot Bontkes. “Paulie” was Bradshaw’s nickname.
[12] Later that day, Thielen and Bradshaw met up at the Best Western Hotel. Their conversation was recorded, but only the latter part is audible. Bradshaw said that he had shot Bontkes and had participated in both murders.
[13] Two days later, Thielen and Bradshaw met at Bothwell Park. Bradshaw discussed an unsuccessful attempt to kill Bontkes, which preceded Bontkes’s actual murder in March 2009.
[14] Thielen was arrested on July 30, 2010. He initially denied his involvement in both murders. However, when the police told Thielen that he had been the target of a Mr. Big operation, he then described the murders and identified unnamed participants. The next day, he made another statement to the police in which he described the murders and directly named Bradshaw. A few days later, Thielen re-enacted the murders for the police officers and implicated Bradshaw in both murders. This re-enactment was recorded in a roughly six-hour video.
[15] Thielen and Bradshaw were initially charged together with two counts of first degree murder. However, Thielen pled guilty to second degree murder before the trial started. Thielen was called as a Crown witness in Bradshaw’s trial, but refused to be sworn to give testimony. As a result, he was held in contempt of court. The Crown sought to admit part of the re-enactment video — a hearsay statement — into evidence.
III. Decisions Below
[16] Following a voir dire, Greyell J. admitted the re-enactment video into evidence (2012 BCSC 2025). He found that this hearsay statement was necessary and sufficiently reliable to be admitted. In finding that the statement was sufficiently reliable, he noted that the re-enactment was voluntary, incriminating, and was made after Thielen received legal advice. The statement was also corroborated by extrinsic evidence. However, given Thielen’s unsavoury character, the trial judge determined that a strong Vetrovec warning regarding the re-enactment video was required.
[17] The British Columbia Court of Appeal held that the trial judge erred in admitting the re-enactment video because it was not sufficiently reliable. The court noted that the trial judge relied significantly on evidence that did not implicate Bradshaw in the murders as corroboration. Furthermore, in the recorded conversations at the Best Western Hotel and Bothwell Park, Bradshaw did not implicate himself in the murders to the degree that Thielen implicated Bradshaw in the re-enactment. The British Columbia Court of Appeal concluded that the trial judge erred in finding that threshold reliability was established. It allowed the appeal, set aside the guilty verdicts, and ordered a new trial (2015 BCCA 195, 323 C.C.C. (3d) 475).
IV. Analysis
A. Legal Principles
[18] Hearsay can exceptionally be admitted into evidence if it is necessary and sufficiently reliable. This appeal raises the following question: When can a trial judge rely on corroborative evidence to conclude that the threshold reliability of a hearsay statement is established? To answer, I turn to the rationale for the rule against hearsay and for the principled exception to this rule.
(1) The Principled Exception to the Hearsay Rule
[19] The truth-seeking process of a trial is predicated on the presentation of evidence in court. Litigants make their case by presenting real evidence and viva voce testimony to the trier of fact. In court, witnesses give testimony under oath or solemn affirmation. The trier of fact directly observes the real evidence and hears the testimony, so there is no concern that the evidence was recorded inaccurately. This process gives the trier of fact robust tools for testing the truthfulness of evidence and assessing its value. To determine whether a witness is telling the truth, the trier of fact can observe the witness’s demeanor and assess whether the testimony withstands testing through cross-examination (R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 35).
[20] Hearsay is an out-of-court statement tendered for the truth of its contents. Because hearsay is declared outside of court, it is often difficult for the trier of fact to assess whether it is trustworthy. Generally, hearsay is not taken under oath, the trier of fact cannot observe the declarant’s demeanor as she makes the statement, and hearsay is not tested through cross-examination (R. v. B. (K.G.), [1993] 1 S.C.R. 740, at p. 764). Allowing a trier of fact to consider hearsay can therefore compromise trial fairness and the trial’s truth-seeking process. The hearsay statement may be inaccurately recorded, and the trier of fact cannot easily investigate the declarant’s perception, memory, narration, or sincerity (Khelawon, at para. 2). As Fish J. explains in R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520:
First, the declarant may have misperceived the facts to which the hearsay statement relates; second, even if correctly perceived, the relevant facts may have been wrongly remembered; third, the declarant may have narrated the relevant facts in an unintentionally misleading manner; and finally, the declarant may have knowingly made a false assertion. The opportunity to fully probe these potential sources of error arises only if the declarant is present in court and subject to cross-examination. [Emphasis in original; para. 32.]
[21] Given the dangers that hearsay evidence presents, “[t]he fear is that untested hearsay evidence may be afforded more weight than it deserves” (Khelawon, at para. 35). Therefore, while all relevant evidence is generally admissible, hearsay is presumptively inadmissible (Khelawon, at paras. 2-3).
[22] However, some hearsay evidence “presents minimal dangers and its exclusion, rather than its admission, would impede accurate fact finding” (Khelawon, at para. 2 (emphasis in original)). Thus, categorical exceptions to the rule excluding hearsay developed through the common law over time. These traditional exceptions are based on admitting types of hearsay statements that were considered necessary and reliable, such as dying declarations (Khelawon, at para. 42; R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 20; J. H. Wigmore, Evidence in Trials at Common Law (2nd ed. 1923), vol. III, at p. 152).
[23] Eventually, a more flexible approach to hearsay developed through the jurisprudence. Under the principled exception, hearsay can exceptionally be admitted into evidence when the party tendering it demonstrates that the twin criteria of necessity and threshold reliability are met on a balance of probabilities (Khelawon, at para. 47).
[24] 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).
[25] 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.
(2) Threshold Reliability
[26] To determine whether a hearsay statement is admissible, the trial judge assesses the statement’s threshold reliability. Threshold reliability is established when the hearsay “is sufficiently reliable to overcome the dangers arising from the difficulty of testing it” (Khelawon, at para. 49). These dangers arise notably due to the absence of contemporaneous cross-examination of the hearsay declarant before the trier of fact (Khelawon, at paras. 35 and 48). In assessing threshold reliability, the trial judge must identify the specific hearsay dangers presented by the statement and consider any means of overcoming them (Khelawon, at paras. 4 and 49; R. v. Hawkins, [1996] 3 S.C.R. 1043, at para. 75). The dangers relate to the difficulties of assessing the declarant’s perception, memory, narration, or sincerity, and should be defined with precision to permit a realistic evaluation of whether they have been overcome.
[27] The hearsay dangers can be overcome and threshold reliability can be established by showing that (1) there are adequate substitutes for testing truth and accuracy (procedural reliability) or (2) there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability) (Khelawon, at paras. 61-63; Youvarajah, at para. 30).
[28] Procedural reliability is established when “there are adequate substitutes for testing the evidence”, given that the declarant has not “state[d] the evidence in court, under oath, and under the scrutiny of contemporaneous cross-examination” (Khelawon, at para. 63). These substitutes must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement (Khelawon, at para. 76; Hawkins, at para. 75; Youvarajah, at para. 36). Substitutes for traditional safeguards include a video recording of the statement, the presence of an oath, and a warning about the consequences of lying (B. (K.G.), at pp. 795-96). However, some form of cross-examination of the declarant, such as preliminary inquiry testimony (Hawkins) or cross-examination of a recanting witness at trial (B. (K.G.); R. v. U. (F.J.), [1995] 3 S.C.R. 764), is usually required (R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, at paras. 92 and 95). In this respect, I disagree with the Court of Appeal’s categorical assertion that safeguards relevant to assessing procedural reliability are only “those in place when the statement is taken” (para. 30). Some safeguards imposed at trial, such as cross-examination of a recanting witness before the trier of fact, may provide a satisfactory basis for testing the evidence.
[29] However, jury warnings about the dangers of hearsay evidence or Vetrovec testimony do not provide adequate substitutes for traditional safeguards. Instructing a jury on how to evaluate a statement that it lacks the means to evaluate does not address the hearsay dangers that underlie the exclusionary rule. Furthermore, Vetrovec warnings are designed to address concerns about a witness who is inherently untrustworthy, despite the opportunity to cross-examine in court. They are not tools for assessing the truth and accuracy of a hearsay statement in the absence of contemporaneous cross-examination.
[30] A hearsay statement is also admissible if substantive reliability is established, that is, if the statement is inherently trustworthy (Youvarajah, at para. 30; R. v. Smith, [1992] 2 S.C.R. 915, at p. 929). To determine whether the statement is inherently trustworthy, the trial judge can consider the circumstances in which it was made and evidence (if any) that corroborates or conflicts with the statement (Khelawon, at paras. 4, 62 and 94-100; R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 55).
[31] While the standard for substantive reliability is high, guarantee “as the word is used in the phrase ‘circumstantial guarantee of trustworthiness’, does not require that reliability be established with absolute certainty” (Smith, at p. 930). Rather, the trial judge must be satisfied that the statement is “so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process” (Khelawon, at para. 49). The level of certainty required has been articulated in different ways throughout this Court’s jurisprudence. Substantive reliability is established when the statement “is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken” (Smith, at p. 933); “under such circumstances that even a sceptical caution would look upon it as trustworthy” (Khelawon, at para. 62, citing Wigmore, at p. 154); when the statement is so reliable that it is “unlikely to change under cross-examination” (Khelawon, at para. 107; Smith, at p. 937); when “there is no real concern about whether the statement is true or not because of the circumstances in which it came about” (Khelawon, at para. 62); when the only likely explanation is that the statement is true (U. (F.J.), at para. 40).
[32] These two approaches to establishing threshold reliability may work in tandem. 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.
(3) Corroborative Evidence and Substantive Reliability
[33] With these principles in mind, I turn to the issue at the heart of this appeal: When and how can a trial judge rely on corroborative evidence to conclude that substantive reliability is established?
[34] The Crown submits that threshold reliability involves a consideration of all the corroborative evidence that supports the truthfulness of a statement, including evidence that does not implicate the accused, or directly confirm the disputed aspect of the statement. The Crown explains that this approach to corroboration is aligned with other areas of the law, including corroboration when assessing the ultimate reliability of hearsay statements, the ultimate reliability of unsavoury witness statements, and the threshold reliability of Mr. Big statements.
[35] In contrast, the respondent Bradshaw submits that the trial judge can only consider evidence that corroborates the purpose for which a hearsay statement is tendered, and notes that the re-enactment statement was tendered to implicate him in the murders.
[36] In my view, the Crown’s position that “a uniform definition of confirmatory evidence” should be employed “at both the threshold and ultimate reliability stages” is untenable because it misconstrues the relationship between threshold and ultimate reliability (A.F., at para. 96). It also misconstrues the relationship between threshold reliability and probative value.
[37] In R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, this Court held that corroborative evidence could not be considered in assessing the threshold reliability of hearsay. This bright-line rule was created to ensure that the trial judge did not invade the province of the trier of fact by pre-determining a hearsay statement’s ultimate reliability (para. 217).[1]
[38] Khelawon overturned Starr on this point. Charron J. explained that, in appropriate cases, corroborative or conflicting evidence can be considered in assessing threshold reliability (paras. 93-100). Khelawon established that “an item of evidence [that] goes to the trustworthiness of the statement . . . should no longer be excluded simply on the basis that it is corroborative in nature” (Blackman, at para. 55 (emphasis added)). But “[i]t is important to emphasize that Khelawon did not broaden the scope of the admissibility inquiry; it merely refocused it” (Blackman, at para. 54). While Khelawon overturned the prohibition on considering corroborative evidence in the admissibility inquiry, it reaffirmed the distinction between threshold and ultimate reliability (para. 50; Blackman, at para. 56).
[39] The distinction between threshold and ultimate reliability, while “a source of confusion”, is crucial (Khelawon, at para. 50). Threshold reliability concerns admissibility, whereas ultimate reliability concerns relianc