R. v. Charles

R. v. Charles
Collection
Supreme Court Judgments
Date
2024-09-25
Neutral citation
2024 SCC 29
Case number
40319
Judges
Karakatsanis, Andromache; Côté, Suzanne; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas; Jamal, Mahmud; Moreau, Mary
On appeal from
Quebec
Subjects
Criminal law
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Charles, 2024 SCC 29
Appeal Heard: January 18, 2024 Judgment Rendered: September 25, 2024 Docket: 40319
Between:
Yves Caleb Jr. Charles Appellant
and
His Majesty The King Respondent
Official English Translation
Coram: Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal and Moreau JJ.
Reasons for Judgment: (paras. 1 to 80)
Moreau J. (Karakatsanis, Martin and Jamal JJ. concurring)
Joint Dissenting Reasons: (paras. 81 to 109)
Côté and Kasirer JJ. (Rowe J. concurring)
Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.
Yves Caleb Jr. Charles Appellant
v.
His Majesty The King Respondent
Indexed as: R. v. Charles
2024 SCC 29
File No.: 40319.
2024: January 18; 2024: September 25.
Present: Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal and Moreau JJ.
on appeal from the court of appeal for quebec
Criminal law — Evidence — Admissibility — Hearsay — Principled exception to hearsay rule — Trial judge admitting witness’s out‑of‑court statement into evidence — Whether statement could be admitted into evidence under principled exception to rule against hearsay.
Following an incident involving the accused and the complainant at the school they attended, the accused was charged with assault with a weapon, using an imitation firearm in the commission of an assault, and uttering threats. At trial, the complainant testified that he had entered a washroom at the school and had felt something on his hip while washing his hands. When he turned around, he saw that it was a pistol being held by the accused, used to threaten him. Two other students were present at the time. One of them, whom the Crown called as a witness at the accused’s trial, claimed on being questioned that he had no recollection of the events. The Crown therefore requested a voir dire, seeking to admit into evidence an out‑of‑court statement that had been given by that witness to the police investigators the day after the events. Accompanied at the time by his mother, the witness, who had been arrested and taken into custody in connection with the same incident, was questioned by the police investigators for about an hour and provided a statement in writing. Among other things, the witness admitted in his statement that he was in possession of two pellet pistols. The police conducted a search and recovered the pistols at the witness’s residence, in the location indicated in his statement.
The trial judge admitted the witness’s out‑of‑court statement into evidence. He found that the only likely explanation for the statement was its truthfulness as to its material aspects, given the circumstances in which the statement was made and the seizure of pistols, which the trial judge considered to be corroborative evidence. Following the trial, the accused was found guilty of the three counts. The trial judge accepted the complainant’s version of events, which was supported for the most part by a surveillance video and the witness’s statement. A majority of the Court of Appeal upheld the trial judge’s decision to admit the statement into evidence and dismissed the accused’s appeal from his convictions. In addition to being of the view that the trial judge’s conclusion was justified, the majority pointed out the striking similarity between the complainant’s testimony and the witness’s statement, which, according to the majority, tended to confirm that the statement was sufficiently reliable.
Held (Côté, Rowe and Kasirer JJ. dissenting): The appeal should be allowed, the convictions quashed and a new trial ordered.
Per Karakatsanis, Martin, Jamal and Moreau JJ.: The trial judge erred in finding that the witness’s out‑of‑court statement had the required indicia of reliability and in admitting the statement into evidence at trial. The results of the search subsequently conducted at the witness’s residence do not meet the criteria for corroborative evidence set out in R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865. Moreover, the circumstances surrounding the statement do not support a finding that threshold reliability is established. Finally, the majority of the Court of Appeal should not have relied on the complainant’s testimony, tendered outside of the voir dire, to establish the threshold reliability of the witness’s statement.
Hearsay evidence is presumptively inadmissible. 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. At the threshold reliability stage, one can only rely on 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. In the absence of a connection between the corroborative evidence and the aspect sought to be proved, the evidence is quite simply of no assistance in determining whether that specific aspect is true or accurate; it merely corroborates the declarant’s credibility, the accused’s guilt or one party’s theory of the case, which is not sufficient. The combined effect of the corroborative evidence and the circumstances of the case, not the evidence taken in isolation, must rule out plausible alternative explanations for the material aspects of the statement. The absence of leading questions, inconsistent statements, promises of benefit or a criminal lifestyle simply points to an absence of factors that, if present, would detract from an otherwise trustworthy statement.
In this case, the Crown was required to show that the search results confirmed the accused’s role in the events if it was seeking to use the witness’s statement to establish the accused’s degree of involvement as well as the use of the weapon. There is no connection between the discovery of the pistols and the accused’s degree of involvement. The location of the pistols therefore cannot serve to show that threshold reliability is established through that aspect of the statement alone. Aside from establishing the truth of that aspect of the statement, that evidence is not capable of ruling out plausible alternative explanations for the events.
In addition, the witness’s statement raises particular reliability concerns. Because the witness is an accomplice, there is a very real danger that he tried to shift his responsibility onto the accused in his statement. It was to the witness’s advantage to provide an account that limited his participation to possession of the weapons, avoiding the charges that involved a greater degree of participation. In the absence of external evidence confirming that the accused played the primary role in the washroom, the circumstantial guarantees cannot overcome the dangers presented by the witness’s statement. Indeed, the absence of a criminal lifestyle is not at all clear. Moreover, the presence of the witness’s mother is not actually an indicium of reliability, because it is possible that the witness did not want his mother to know his degree of involvement, which could have motivated him to lie. The temporal proximity between the statement and the events is also not a useful factor in assessing the specific danger raised by the statement, namely, that the witness lied. Lastly, the witness’s consultation with counsel does not make it possible to exclude the risk that he tried to minimize his responsibility. Nor are the indicia of procedural reliability reassuring, because the usual substitutes for the traditional safeguards are absent: there was no recording of the statement or the interview that preceded it, the witness was not under oath and was not given a warning by the investigators concerning the need to tell them the truth and the consequences associated with lying, and the defence was deprived of any opportunity to cross‑examine the witness. In short, the combined effect of the corroborative evidence and the circumstances does not overcome the specific hearsay dangers raised by the out‑of‑court statement.
As for the complainant’s testimony, that evidence cannot be considered in analyzing the threshold reliability of the witness’s statement. Despite the fact that the complainant testified before the trial judge rendered his decision on the voir dire, his testimony was not part of the voir dire. On appeal, the appropriate mechanism for considering the complainant’s testimony that was not formally tendered in the voir dire is the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, which cannot be applied in this case because the trial judge’s admission of the statement is not a harmless or trivial error and it is not clear that the evidence pointing to the accused’s guilt is so overwhelming that any other verdict but a conviction would be impossible.
Per Côté, Rowe and Kasirer (dissenting): The appeal should be dismissed. There is no reviewable error in the trial judge’s decision to admit the witness’s out‑of‑court statement into evidence under the principled exception to the rule against hearsay. However, there is agreement with the majority that, on appeal, the appropriate mechanism for considering the complainant’s testimony is the curative proviso.
The trial judge made no reviewable error in taking the discovery of the weapons into account as corroborative evidence in the assessment of threshold reliability. Given the charges laid and the burden they entailed for the prosecution, there is indeed a logical connection between the aspect of the statement pertaining to the presence of the weapon in the washroom, corroborated by the discovery of the weapon at the witness’s residence, and the aspect of the statement pertaining to the handling of that same weapon by the accused at the same time and in the same location. Such a logical connection makes it possible, in the assessment of threshold reliability, to consider corroborative evidence that does not relate to all of the material aspects of a statement. Threshold reliability can be established through the combined effect of the corroborative evidence and the circumstances that constitute indicia of reliability, as those circumstances make remedying the insufficiency of the corroborative evidence possible.
In the absence of an error in principle that tainted the analysis at first instance during the consideration of certain circumstances in the assessment of threshold reliability, the trial judge’s decision was owed deference by the Court of Appeal. The relevance of the circumstances depends on the specific dangers associated with the hearsay in question and thus on the facts of the case. It would be wrong to categorize, objectively and independently of the facts of the case, the circumstances that are neutral or secondary and those that are more important. It is true that circumstances that in essence simply point to an absence of factors that, if present, would detract from an otherwise trustworthy statement do not provide a circumstantial guarantee of trustworthiness. However, those circumstances are relevant. While such circumstances are not sufficient on their own to establish threshold reliability, such circumstances considered in conjunction with others (for example, corroboration even insufficient on its own), may lead to the conclusion that the statement has all the attributes required for acceptable threshold reliability. The fact that the witness spoke with counsel, the fact that his mother accompanied him when he made his statement and the fact that his mother was made aware of the tenor of the witness’s rights are indicia of reliability that the trial judge could validly consider.
Cases Cited
By Moreau J.
Applied: R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865; referred to: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787; R. v. Conway (1997), 36 O.R. (3d) 579; R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720; R. v. B. (K.G.), [1993] 1 S.C.R. 740; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144; R. v. Mohamed, 2023 ONCA 104, 423 C.C.C. (3d) 308; R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517; R. v. L.T.H., 2008 SCC 49, [2008] 2 S.C.R. 739; R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823.
By Côté and Kasirer JJ. (dissenting)
R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692; 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. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865; R. v. Hall, 2018 MBCA 122, [2019] 1 W.W.R. 612; R. v. Burns, 2016 SKCA 67, 337 C.C.C. (3d) 523; R. v. Allary, 2021 SKCA 110; R. v. U. (F.J.), [1995] 3 S.C.R. 764; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787; R. v. Khan, [1990] 2 S.C.R. 531; R. v. Larue, 2018 YKCA 9, 434 D.L.R. (4th) 155, aff’d 2019 SCC 25, [2019] 2 S.C.R. 398; R. v. Bernard, 2018 ABCA 396, 80 Alta. L.R. (6th) 258; R. v. L.T.H., 2008 SCC 49, [2008] 2 S.C.R. 739.
Statutes and Regulations Cited
Canada Evidence Act, R.S.C. 1985, c. C‑5, s. 9(2).
Criminal Code, R.S.C. 1985, c. C‑46, s. 686(1)(b)(iii).
Authors Cited
Lederman, Sidney N., Michelle K. Fuerst and Hamish C. Stewart. Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 6th ed. Toronto: LexisNexis, 2022.
Paciocco, David M., Palma Paciocco and Lee Stuesser. The Law of Evidence, 8th ed. Toronto: Irwin Law, 2020.
APPEAL from a judgment of the Quebec Court of Appeal (Doyon, Cournoyer and Bachand JJ.A.), 2022 QCCA 1013, 82 C.R. (7th) 373, [2022] AZ‑51869771, [2022] J.Q. no 7437 (Lexis), 2022 CarswellQue 9888 (WL), affirming the convictions of the accused for assault with a weapon, using an imitation firearm in the commission of an assault and uttering threats. Appeal allowed, Côté, Rowe and Kasirer JJ. dissenting.
Emmanuelle Rheault, for the appellant.
Marianna Ferraro and Mathieu Locas, for the respondent.
English version of the judgment of Karakatsanis, Martin, Jamal and Moreau JJ. delivered by
Moreau J. —
TABLE OF CONTENTS
Paragraph
I. Overview
1
II. Facts
6
III. Decisions of the Courts Below
18
A. Court of Québec (Judge Dupras)
18
(1) Voir Dire Ruling
18
(2) Decision as to Guilt
23
B. Quebec Court of Appeal, 2022 QCCA 1013, 82 C.R. (7th) 373
27
(1) Bachand J.A., Dissenting
28
(2) Doyon and Cournoyer JJ.A.
33
IV. Issues
39
V. Analysis
41
A. Standard of Review
41
B. General Principles Concerning the Admissibility of Hearsay Evidence
43
C. Use of the Search Results in the Threshold Reliability Analysis
49
D. Threshold Reliability
64
E. Use of the Complainant’s Testimony in the Threshold Reliability Analysis
76
VI. Conclusion
80
I. Overview
[1] This case concerns the admission into evidence, during the appellant’s trial, of an out‑of‑court statement in writing of a Crown witness, K.A., who claimed on being questioned by the Crown that he had no recollection of the events forming the subject matter of the charges against the appellant. The appellant submits that the trial judge erred in determining that the out‑of‑court statement had the indicia of reliability required by R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, and R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, for admission into evidence. A majority of the Quebec Court of Appeal upheld the trial judge’s decision to admit the statement into evidence. The dissenting judge would have excluded the statement and ordered a new trial.
[2] The central issue to be determined is whether the trial judge erred in finding that the witness’s out‑of‑court statement had the indicia of reliability required according to the principles set out in our jurisprudence. This determination affords us an opportunity to reaffirm the principles laid down in Bradshaw.
[3] I agree with the dissenting Court of Appeal judge that the trial judge erred in admitting the witness’s statement in writing into evidence at trial. The results of the search subsequently conducted at the witness’s residence do not meet the Bradshaw criteria for corroborative evidence. Because the Crown sought to use the witness’s statement to establish the appellant’s role in the events, it was required to show that the search results confirmed that aspect of the statement. As for the circumstances surrounding the statement, they do not support a finding that threshold reliability is established.
[4] Moreover, the majority of the Court of Appeal should not have relied on the complainant’s testimony, tendered outside of the voir dire, to establish the threshold reliability of K.A.’s statement. On appeal, the appropriate mechanism for considering the complainant’s testimony is the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C‑46. However, that provision cannot be applied in this case. It is therefore unnecessary to decide the discrete question of the self‑contained nature of the voir dire at the trial stage, especially since the trial judge expressly declined to consider evidence not tendered in the voir dire, by agreement of the parties.
[5] I would accordingly allow the appeal, quash the convictions and order a new trial.
II. Facts
[6] The appellant was charged with assault with a weapon, using an imitation firearm in the commission of an assault, and uttering threats.
[7] The circumstances at the heart of this case unfolded on February 24, 2016, at the school attended at the time by the appellant, K.A. and the complainant. At the appellant’s trial before a judge alone, the Crown called K.A., the complainant, a police officer and a rehabilitation counsellor who worked at the school. The appellant testified in his own defence.
[8] The complainant testified that he had asked the appellant to stop bothering his girlfriend. The appellant initially became angry but subsequently calmed down. Later, the complainant entered a washroom at the school and, while washing his hands, he felt something on his hip. When he turned around, he saw that it was a pistol being held by the appellant. Two other students, K.A. and a person named Fares, were also present. When asked by the complainant whether the pistol [translation] “was a real one”, the appellant replied: “Do you want to see if it’s a real one? I think I have a bullet left in it” (A.R., vol. II, at pp. 305‑6). K.A. and Fares later caught up with the complainant and told him that the firearm was a fake.
[9] The day after the events, K.A. was arrested and taken into custody for possession of a firearm for a dangerous purpose, possession of an imitation firearm, carrying a concealed firearm, uttering death threats and assault with a weapon. K.A. was informed of his rights and consulted counsel.
[10] Accompanied by his mother, K.A. was questioned by the police investigators for about an hour and provided a statement in writing. In his testimony at the voir dire on the admissibility of K.A.’s statement, the police investigator who had taken notes during the interview could not guarantee that he had taken down all of the questions asked or, for that matter, everything said during the interview. No recording (video or audio) of the interview was made, nor was the statement made under oath. The police investigators did not warn K.A. of the possible consequences of giving a false statement.
[11] In his written statement, K.A. admitted that he was in possession of two pellet pistols belonging to Fares. According to K.A., while he was with Fares and the appellant in the washroom, he was asked to give one of the pistols to the appellant. K.A. was not aware of the issues between the appellant and the complainant. The appellant pointed the weapon at the complainant while uttering threats against him, then tried to wipe his prints off the weapon before returning it to K.A. A short time later, K.A. and Fares found the complainant and told him that the appellant was not serious and was only joking.
[12] K.A.’s statement also described the pistols and where they were located in his residence, namely, in a drawer of his dresser. The police then conducted a search and recovered the pistols in the location indicated by K.A. K.A. subsequently pleaded guilty to a charge of carrying a weapon for a purpose dangerous to the public peace.
[13] When called by the Crown as a witness at the appellant’s trial, K.A. claimed to have no recollection of the events. The Crown then requested a voir dire, seeking to admit into evidence the recording of K.A.’s guilty plea before the Youth Division of the Court of Québec. Since the complainant had already lost part of a work day, the trial judge decided to adjourn the voir dire in order to allow him to testify. When the voir dire resumed, the Crown advised the trial judge of its intention to adduce into evidence as well the out‑of‑court statement given by K.A. to the police investigators on February 25, 2016.
[14] The trial judge inquired as to whether all of the trial evidence would be tendered in the voir dire. The parties agreed that the trial judge could consider K.A.’s demeanour while testifying but that the other trial evidence would not be tendered in the voir dire.
[15] The trial judge admitted K.A.’s out‑of‑court statement into evidence at the trial, but not his guilty plea.
[16] The appellant testified during the trial that on February 24, 2016, K.A. — a person unknown to him — offered to show him an iPad electronic tablet. The appellant later saw K.A. and another person in the washroom. K.A. showed him the iPad and said that he also had something else to show him. K.A. then took out a firearm. The appellant held it for a few seconds before returning it to K.A. The complainant, who was also in the washroom, asked whether the pistol was “a real one”. The appellant answered that it was not; however, the individual with K.A. said that there was still a bullet in it.
[17] Following the trial, the appellant was found guilty of the three counts.
III. Decisions of the Courts Below
A. Court of Québec (Judge Dupras)
(1) Voir Dire Ruling
[18] At the outset of his reasons, the trial judge noted that the evidence adduced at the trial had not been tendered in the voir dire, except for the evidence concerning K.A.’s demeanour at the trial. The trial judge relied on the Ontario Court of Appeal’s decision in R. v. Conway (1997), 36 O.R. (3d) 579, as well as similar remarks made in Bradshaw, in determining that he had to confine himself to the evidence tendered during the voir dire.
[19] The trial judge had no difficulty in finding that necessity — the first criterion for the admissibility of hearsay — was met given that K.A. claimed during the trial to have no recollection of the events.
[20] He also found that the criterion of reliability was met, highlighting the following circumstances:
• K.A. was read his rights from a form used specifically for minors.
• K.A.’s mother was present at all times while he was being questioned and while the statement was being written, and her son’s rights were explained to her.
• K.A. consulted counsel before giving his statement.
• K.A. admitted, without hesitation, his responsibility in relation to the events.
• The police investigators’ questions were not leading.
• There was no evidence of inconsistent statements.
• K.A. did not have a criminal record and there was no evidence as to moral character, criminal lifestyle, past dishonesty or interest in the outcome of the trial.
• K.A. provided his statement the day after the events occurred.
• K.A. did not attempt to diminish his criminal responsibility, as he even made assertions that lessened the appellant’s responsibility. This distinguished the situation at hand from those in which an accomplice attempts to evade responsibility by blaming someone else.
• There was an intrinsic structure to what was said, and K.A. seemed to adhere to an inherent logic, particularly in minimizing the intent that might be inferred from the appellant’s conduct.
[21] The trial judge also considered the seizure of pistols at K.A.’s residence to be corroborative evidence. He noted that those items had been seized by consent, which demonstrated K.A.’s willingness to cooperate fully with the authorities, at the risk of incriminating himself.
[22] The trial judge identified the honesty of the declarant as the specific hearsay danger raised. However, given the circumstances and the corroborative evidence, he found that the only likely explanation for the statement was its truthfulness as to its material aspects.
(2) Decision as to Guilt
[23] The trial judge began his analysis by assessing the probative value of K.A.’s statement. He pointed out that there were certain discrepancies between that statement and a surveillance video (“Exhibit P‑6”) which showed the individuals concerned in a hallway beside the washroom. Noting that he had not yet viewed Exhibit P‑6 at the time he assessed threshold reliability, the trial judge found [translation] “that once it is placed in the general context of the evidence as a whole, there are elements of [the statement] whose probative value must be adjusted downward” (para. 45, reproduced in A.R., vol. I, at p. 49).
[24] The trial judge concluded that he did not believe the appellant’s version and that it did not raise a reasonable doubt.
[25] Relying on Exhibit P‑6 and the complainant’s testimony, as well as the portions of the appellant’s testimony that confirmed the complainant’s testimony, the trial judge found that the Crown had established the appellant’s guilt beyond a reasonable doubt. The probative value of certain passages of K.A.’s statement was compromised, but other passages remained useful. In particular, the statement had been proven truthful with respect to the location of the weapon or weapons. With regard to the [translation] “crux of this case, the criminal use of the weapon by the accused”, the trial judge noted that K.A.’s statement generally supported the complainant’s account (para. 68). When K.A.’s comments were properly situated in the context of the evidence as a whole, they [translation] “compel[led] the recognition of [their] definite probative value” (para. 69). The trial judge accepted the complainant’s version of events, which he considered to be supported for the most part by Exhibit P‑6 and K.A.’s statement.
[26] The trial judge therefore convicted the appellant of the three counts and entered a conditional stay of proceedings on the second count.
B. Quebec Court of Appeal, 2022 QCCA 1013, 82 C.R. (7th) 373
[27] Before the Court of Appeal, the appellant argued that the trial judge had erred in considering the location of the pistols as corroborative evidence and in finding that the circumstances surrounding the statement were sufficient to establish threshold reliability. While the dissenting judge would have allowed the appeal on the basis of those arguments, the majority rejected them. The Court of Appeal unanimously rejected a second argument concerning s. 9(2) of the Canada Evidence Act, R.S.C. 1985, c. C‑5, which the appellant did not pursue before this Court.
(1) Bachand J.A., Dissenting
[28] Bachand J.A. found that the search results were not relevant in determining whether the statement was admissible to establish the appellant’s role in the incident. Corroborative evidence may be used in the analysis of threshold reliability only when that evidence, considered as a whole and in the circumstances of the case, shows that the only likely explanation for the statement is the statement’s truthfulness or accuracy regarding its material aspects. In particular, Bachand J.A. cited Karakatsanis J.’s majority reasons in Bradshaw stating that the function of corroborative evidence is to mitigate the need for cross‑examination on the point that the statement is tendered to prove.
[29] However, there was no connection between the search results and the issue of whether the appellant had handled the weapon and used it to threaten the complainant. Therefore, if the Crown adduced the statement to prove that fact, the search results could not be used to establish the statement’s admissibility. This remained true even if the Crown also wished to adduce the statement to show that a weapon had been used. The search results could then be used to establish the reliability of the statement in relation to this second aspect, but not in relation to the first.
[30] As for the circumstances surrounding the statement, Bachand J.A. determined that they did not provide sufficient guarantees. The trial judge relied on certain circumstances that, in light of the case law, had to be regarded as having very limited weight. K.A. had reasons to lie, since he was suspected of having committed offences in connection with the events of February 24, 2016. The statement [translation] “certainly had the effect of diminishing his own role while attributing responsibility for the offences mainly to the appellant” (para. 45). The trial judge gave little weight to K.A.’s interest in not being identified as the person who had used the pistol and threatened the complainant. It could not reasonably be said that the circumstances of the statement [translation] “compel[led]” the conclusion that cross‑examining K.A. would have added nothing to the process (para. 48).
[31] With regard to the complainant’s testimony, Bachand J.A. pointed out (in a footnote) that it was not part of the evidence relied upon for the purposes of the voir dire.
[32] Finally, Bachand J.A. found that the curative proviso in s. 686(1)(b)(iii) could not apply.
(2) Doyon and Cournoyer JJ.A.
[33] The majority dismissed the appeal, finding that the dissenting judge was [translation] “unduly pars[ing] the evidence and the jurisprudence”, which resulted in “the negation of the key principle that favours a flexible approach, an assessment made on a case‑by‑case basis, in light of all the circumstances” (para. 53). That assessment [translation] “is first and foremost a matter for the trial judge because the trial judge is in the best position to determine the extent to which the dangers of hearsay evidence are present” (para. 53).
[34] The situation differed from that in Bradshaw. Here, K.A. had not made prior inconsistent statements and had participated in a police interview within hours of the incident. His credibility was not damaged at the time of his statement, and the evidence corroborated one of the two material aspects of the statement. The evidence could not be split up to limit corroboration to one aspect: [translation] “At that stage of the trial, the scope of the statement was much broader than that described by [the dissenting judge], and the discovery of a weapon, according to the [trial] judge, corroborated the entire statement” (para. 59), which was not an error. In addition, the trial judge did not rely primarily or exclusively on corroboration to admit the evidence. Even though each factor was insufficient in itself, it was open to the trial judge to consider the factors as a whole in order to find that threshold reliability had been established.
[35] The majority summarized the evidence concerning the circumstances as follows, at para. 64 of its reasons:
[translation] A young person, who had consulted counsel and who understood the gravity of the situation and his duty to tell the truth because of the caution and the presence of a parent, gave a short, very coherent statement shortly after the events. He was accompanied by his mother (in accordance with the Youth Criminal Justice Act to ensure the integrity of the statement and even its reliability: R. v. L.T.H., 2008 SCC 49, [2008] 2 S.C.R. 739, at para. 38) and made a written statement, which he gave and signed without coercion or even any leading questions. In the statement, he completely incriminated himself. In addition, he consented to the police going to his residence to seize the weapons, which demonstrated a genuine desire to cooperate with the police by telling the truth.
[36] Considered as a whole, these factors could justify the trial judge’s conclusion.
[37] The majority was also of the view that K.A. had not shifted his responsibility onto the appellant’s shoulders. There was nothing to suggest that K.A. had an interest in making a statement that would prevent him from being identified as the person who had used the pistol and uttered threats.
[38] Finally, the majority pointed out the striking similarity between the complainant’s testimony and K.A.’s statement. The majority noted that K.A. had not discussed the content of his statement with the complainant, which tended to confirm that the statement was sufficiently reliable.
IV. Issues
[39] The appellant raises only one issue: Did the Quebec Court of Appeal err in law in upholding the decision to admit K.A.’s statement into evidence on the basis of the principled exception to the hearsay rule?
[40] The reasons of the majority of the Court of Appeal raise a second issue: Did the majority of the Court of Appeal err in relying on the complainant’s testimony to find that the threshold reliability of K.A.’s statement had been established?
V. Analysis
A. Standard of Review
[41] Both issues are subject to a correctness standard. The admissibility of hearsay evidence is a question of law. However, as my colleagues in dissent have correctly noted, an appellate court must accord deference to the findings of fact underlying an admissibility ruling. It must also be borne in mind that “a trial judge is well placed to assess the hearsay dangers in a particular case and the effectiveness of any safeguards to assist in overcoming them” (R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 31). Thus, “absent an error in principle, the trial judge’s determination of threshold reliability is entitled to deference” (para. 31).
[42] The question of whether it was open to the majority of the Court of Appeal to rely on the complainant’s testimony to find that the threshold reliability of K.A.’s statement was established is also a question of law. The correctness standard therefore applies to this question as well.
B. General Principles Concerning the Admissibility of Hearsay Evidence
[43] Hearsay evidence is presumptively inadmissible (see, e.g., Bradshaw, at paras. 1 and 21). Its presumptive inadmissibility is due to the fact that it is often difficult to assess the truth of a statement made outside the courtroom. In Bradshaw, Karakatsanis J. explained that, 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” (para. 20). However, “[t]he truth‑seeking process of a trial is predicated on the presentation of evidence in court” (Bradshaw, at para. 19), and “our adversary system is based on the assumption that sources of untrustworthiness or inaccuracy can best be brought to light under the test of cross‑examination” (Khelawon, at para. 48). It is “mainly because of the inability to put hearsay evidence to that test” that such evidence is presumptively inadmissible (Khelawon, at para. 48; see also Bradshaw, at para. 1).
[44] The admission of hearsay may therefore “compromise trial fairness and the trial’s truth‑seeking process” (Bradshaw, at para. 20). It is possible that the statement has been “inaccurately recorded, and the trier of fact cannot easily investigate the declarant’s perception, memory, narration, or sincerity” (Bradshaw, at para. 20, citing Khelawon, at para. 2). There is thus a risk that such evidence “may be afforded more weight than it deserves” (Bradshaw, at para. 21, quoting Khelawon, at para. 35).
[45] That being said, in some circumstances, hearsay evidence “presents minimal dangers and its exclusion, rather than its admission, would impede accurate fact finding” (Khelawon, at para. 2 (emphasis in original), quoted in Bradshaw, at para. 22). Over time, the case law therefore developed categorical exceptions to the exclusionary rule and, ultimately, a more flexible approach. 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” (Bradshaw, at para. 23, citing Khelawon, at para. 47). To establish the threshold reliability of a statement, a party may demonstrate its procedural or substantive reliability.
[46] Procedural reliability is established when there are adequate substitutes for testing the truth and accuracy of the statement “given that the declarant has not ‘state[d] the evidence in court, under oath, and under the scrutiny of contemporaneous cross‑examination’” (Bradshaw, at para. 28, quoting Khelawon, at para. 63). Triers of fact must have “a satisfactory basis . . . to rationally evaluate the truth and accuracy of the hearsay statement” (Bradshaw, at para. 28). Substitutes for the traditional safeguards “include a video recording of the statement, the presence of an oath, and a warning about the consequences of lying” (Bradshaw, at para. 28, citing R. v. B. (K.G.), [1993] 1 S.C.R. 740, at pp. 795‑96). Some form of cross‑examination of the declarant, such as preliminary inquiry testimony, is usually required (Bradshaw, at para. 28).
[47] Substantive reliability is established when the statement is inherently trustworthy. To determine whether this is the case, trial judges may consider the circumstances in which the statement was made as well as the evidence that corroborates or conflicts with it. The standard is a high one (Bradshaw, at para. 31). That being said, it is not necessary for reliability to be established with absolute certainty. Rather, judges 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, quoted in Bradshaw, at para. 31). In other words, the evidence must be “sufficiently reliable to overcome the dangers arising from the difficulty of testing it” (Bradshaw, at para. 26, quoting Khelawon, at para. 49). As Karakatsanis J. explained in Bradshaw, at para. 31:
Substantive reliability is established when the statement “is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken” ([R. v. Smith, [1992] 2 S.C.R. 915], at p. 933); “under such circumstances that even a sceptical caution would look upon it as trustworthy” (Khelawon, at para. 62, citing [J. H. Wigmore, Evidence in Trials at Common Law (2nd ed. 1923), vol. III], 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 ([R. v. U. (F.J.), [1995] 3 S.C.R. 764], at para. 40).
[48] In the criminal context, “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” (Bradshaw, at para. 24). By ensuring that only hearsay that is necessary and reliable is admitted, “the trial judge acts as an evidentiary gatekeeper. She protects trial fairness and the integrity of the truth‑seeking process” (para. 24).
C. Use of the Search Results in the Threshold Reliability Analysis
[49] Recall that, to determine whether “corroborative evidence is of assistance in the substantive reliability inquiry”, a trial judge should