R. v. MacKinnon, 2022 ONCA 811
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The Framework for the Admission of Hearsay Evidence
[27] Hearsay is an out-of-court statement tendered for the truth of its contents. In a jury trial, the trial judge decides whether the hearsay statement should be admitted into evidence (threshold reliability). If the hearsay statement is admitted, the jury then considers whether the hearsay statement is to be believed and if so, what weight, if any, should be attributed to it in the context of the entire evidentiary record (ultimate reliability): R. v. Khelawon, 2006 SCC 57, 2 S.C.R. 787, at paras. 3, 50.
[28] It is important to remember that in a jury trial, at the admission stage, the trial judge’s role is limited to deciding whether to admit the hearsay statement, not whether the statement should ultimately be relied on and what its probative value is: R. v. Bradshaw, 2017 SCC 35, [2017] 1 SCR 865, at para. 41.
[29] In a criminal jury trial, it is “constitutionally imperative” that questions of ultimate reliability be left for the jury: Khelawon, at para. 50; Bradshaw, at para. 114. This is because, “[w]here the criteria of necessity and reliability are satisfied, the lack of testing by cross-examination goes to weight, not admissibility, and a properly cautioned jury should be able to evaluate the evidence on that basis.”: R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915, at p. 9.
[30] Hearsay evidence is presumptively inadmissible because it is difficult for the trier of fact to assess its truth when the circumstances under which it was made may not be clear, and the person who gave the statement is not available for cross-examination, cannot be observed by the trier of fact, and did not testify under oath when giving the statement: Bradshaw, at para. 20.
[31] However, courts have recognized that in some circumstances, hearsay evidence should be admitted at trial for the jury’s consideration.
[32] First, statements falling within traditional exceptions to the hearsay rule, such as spontaneous utterances, are presumptively admissible: R. v. Schneider, 2022 SCC 34, at para. 51; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 212; and R. v. Nurse, 2019 ONCA 260, 145 O.R. (3d) 241, at para. 61. In “rare cases” however, evidence falling within a traditional exception may be excluded where the indicia of necessity and reliability are lacking in the particular case: R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358, at para. 15; Schneider, at para. 51.
[33] Second, even if hearsay evidence does not fall under a traditional exception, it may still be admitted under the “principled approach” provided that the statement is both necessary and sufficiently reliable such that it “presents minimal dangers and its exclusion, rather than its admission, would impede accurate fact finding”: Khelawon, at para. 2; Bradshaw, at para. 24.
[34] The traditional hearsay exceptions and the principled approach are generally informed by the same reliability considerations. Save for certain exceptions with “unique doctrinal roots”, such as party admissions, the Supreme Court has long recognized that the traditional exceptions inherently embody a reliability component either because “many of the traditional dangers associated with hearsay are not present”, as in the case of statements made in former proceedings, or because “the statement provides circumstantial guarantees of reliability”, as in the case of spontaneous utterances, dying declarations and statements against interest: Starr, at para. 212; Khelawon, at para. 6. For discussion of party admissions exception, see Schneider, at para. 53; R. v. Foreman (2002), 2002 CanLII 6305 (ON CA), 62 O.R. (3d) 204 (C.A.), at para 37; and R. v. Evans, 1993 CanLII 86 (SCC), [1993] 3 S.C.R. 653, at p. 664.
[35] In Mapara, at para. 24, McLachlin C.J. specifically recognized that in the case of spontaneous utterances, the “surrounding context furnishes circumstantial indicators of reliability.”
[36] In R. v. Youvarajah, 2013 SCC 4, [2013] 2 S.C.R. 720, at para. 20, Karakatsanis J. further elaborated that the traditional exceptions were developed over time for “statements carrying certain guarantees of inherent trustworthiness, often because of the circumstances in which they were made” such that it may be “safe” to admit these statements. Later in Bradshaw, at para. 22, Karakatsanis J. called the traditional exceptions the “types of hearsay statements that were considered necessary and reliable”.
[37] To be admissible, hearsay statements under both exceptions must be “trustworthy”. However, this does not require that reliability of the perception, memory, narration or sincerity of the declarant be established with absolute certainty since this would go to ultimate reliability. The trial judge must, however, be satisfied on a balance of probabilities that the statement is “so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process”: Bradshaw, at paras. 23, 30-32; R. v. Carroll, 2014 ONCA 2, 34 C.C.C. (3d) 252, at para. 111.
[38] The major difference between the two exceptions is that once the requirements of a traditional exception are established, the hearsay statement is presumed to be admissible, absent a “rare cases” exception: Starr, at para. 212. By contrast, in the case of a principled exception, there is no presumption of admissibility. Indeed, the starting presumption is that the hearsay statement is inadmissible, and the analysis of reliability and necessity must be conducted in full: Khelawon, at paras. 47-48; Bradshaw, at para. 23.
[39] Whether a hearsay statement ought to be admitted is a question of law judged on a correctness standard. However, factual findings that feed that determination are entitled to deference on appeal. “[A]bsent an error in principle, the trial judge’s determination of threshold reliability is entitled to deference”: R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 31; see also R. v. Young, 2021 ONCA 535, 407 C.C.C. (3d) 265, at para. 30.
i. The Traditional Hearsay Exception for Spontaneous Utterances
[40] One of the traditional exceptions to the general rule that hearsay evidence is inadmissible is the exception for spontaneous declarations. The requirement that the statement be made spontaneously under the pressure of a dramatic event is specifically geared to minimize the danger of fabrication or distortion because the declarant’s faculty is so overcome by the harrowing event that there is no opportunity for reflection, speculation or concoction. “Statements made under pressure or emotional intensity give the guarantee of reliability upon which the spontaneous declaration rule has traditionally rested”: R. v. Nguyen, 2015 ONCA 278, at para. 145, leave to appeal refused, [2015] S.C.C.A. No. 365; R. v. Khan, [1990] 2 S.C.R. 521, at p. 540; and S. Casey Hill, David M. Tanovich and Louis P. Strezos, 5th ed., McWilliams’ Canadian Criminal Evidence (Aurora: Canada Law Book, 2022), at § 7:59.
[41] Spontaneity and contemporaneity of the utterance are the guarantors of reliability: R. v. Andrews, [1987] A.C. 281, [1987] 1 All E.R. 513 (H.L.), at pp. 300-1; R. v. Alexander, 2012 ONSC 5873, at paras. 26-27; R. v. Camara, 2021 ONCA 79, 400 C.C.C. (3d) 490, at paras. 78, 83-85; and David M. Paciocco, Palma Paciocco and Lee Stuesser, The Law of Evidence, 8th ed., (Toronto: Irwin Law Inc., 2020), at p. 231.
[42] Exact contemporaneity is not required, as spontaneity depends on the circumstances, but the statement and the event must be reasonably contemporaneous such that the event would still be dominating the mind of the declarant when the statement is made: R. v. Badger, 2021 SKCA 118, 468 D.L.R. (4th) 610, at para. 31, aff’d 2022 SCC 20, 468 D.L.R. (4th) 607; R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520, at para. 15, leave to appeal refused, [2017] S.C.C.A. No. 139; and Nurse, at paras. 80-81.
[43] The question is whether the event was so unusual or startling that it would “dominate the thoughts and expressions of the person making the utterance”, such that there is no real risk of concoction or distortion: Badger, at para. 31; see also, Camara, at para. 85.
[44] In some cases, a spontaneous utterance should not be admitted if there are “special features” that could give rise to an error by the declarant: Badger, at para. 31; see also, Andrews, at p. 301; R. v. Hall, 2018 MBCA 122, at paras. 41, 53-55. Courts have also recognized that, in “rare cases”, even traditional exceptions to hearsay – including spontaneous utterances – can be challenged on the basis that, in a particular case, the indicia of necessity and reliability are lacking Starr, at para. 214; Mapara, at para. 15; and Khelawon, at para. 42; see also, Nurse, at para. 92. Given the potential overlap of these inquiries and the fact that they are both directed at ensuring the reliability of a statement, the “special features” of a case are, in my view, best considered together with the analysis of whether the “rare case” exception applies. Stated otherwise, in rare cases, special features may render a statement considered under the traditional exception for spontaneous utterances unreliable and therefore inadmissible.
[45] Such cases are expected to be few and far between, as evidence that satisfies the requirements of a traditional exception is presumptively admissible precisely because these exceptions “traditionally incorporate an inherent reliability component”: Starr, at para. 212; Nurse, at paras. 63, 89.
[46] Despite its well-established acceptance, there has been little guidance as to what constitutes a “rare case”. Andrews provides that “special features” are “circumstances of particular difficulty” beyond the ordinary fallibility of human recollection: at p. 301.
[47] In the context of the spontaneous utterance exception, “rare cases” may include circumstances of gross intoxication, highly impaired vision, and exceptionally difficult viewing conditions. When there is evidence strongly pointing to the presence of such circumstances, trial judges cannot exclude the real possibility of error and inaccuracy, and the hearsay statement will not meet the threshold reliability requirement under the principled approach: see Andrews, at pp. 300-301; R. v. Hall, 2011 ONSC 5628, at paras. 29, 58-62; Badger, at paras. 34, 37 and 40-42; Hall (MBCA), at paras. 53-54, 96, 98 and 118-19; and McWilliams, at § 7:59.
[48] However, “special features” or “rare case” exceptions should not include factors that may give rise to concerns about the declarant’s honesty or sincerity. Although the House of Lords in Andrews considered malice as a potential “special feature”, which might give rise to the possibility of concoction or distortion, this consideration has formed part of the determination of whether the statement is admissible as a spontaneous utterance wherein spontaneity and contemporaneity are guarantors of the statement’s reliability: Nurse, at para. 63; R. v. Clark (1983), 1983 CanLII 1805 (ON CA), 42 O.R. (2d) 609, leave to appeal to S.C.C. refused, [1983] S.C.C.A. No. 253.
[49] In other words, any reliability concern relating to truthfulness is inherently captured and addressed in the requirements of the spontaneous utterance exception and, in light of the principled approach jurisprudence, cannot form the basis for exclusion under the “rare case” exception. The “rare case” exception must extend beyond the reliability concerns inherently captured in the traditional hearsay exception to be unique to the case at hand: Mapara, at para.36; Nurse, at para. 92.
[50] Nor does the “rare case” exception include weaknesses that go to the ultimate weight of the evidence, which is for the jury to decide.
[51] The onus is on the party wishing to invoke the “rare case” exception to demonstrate that there are special features in a given case such that the presumptively admissible hearsay evidence does not meet the principled requirements of necessity and reliability: Mapara, at paras. 15, 37; Nurse, at para. 91. There is a high threshold to be met by a party seeking to exclude evidence on this basis: see Starr, at paras. 212, 214; R. v. Kler, 2017 ONCA 64, 345 C.C.C (3d) 467, at para. 79; and Nurse, at para. 91.
ii. The Principled Exception for Admission of Hearsay Evidence
[52] If hearsay evidence does not fall under a traditional hearsay exception, such as spontaneous utterance, it may still be admitted as a principled exception if sufficient indicia of necessity and threshold reliability are established on a balance of probabilities: Bradshaw, at para. 23; R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 33.
[53] Necessity is established, for instance, where the declarant is dead: Blackman, at para. 34; R. v. Candir, 2009 ONCA 915, 250 C.C.C. (3d) 139, at para. 57, leave to appeal refused, [2012] S.C.C.A. No. 8.
[54] Threshold reliability can be established through:
i. adequate substitutes for testing the truth and accuracy of the statement (procedural reliability);
ii. circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability); or
iii. a combination of elements of both procedural and substantive reliability: Bradshaw, at paras. 27, 30 and 40; McMorris, at paras. 26-27. The trial judge must identify the specific hearsay dangers presented by the statement, consider how they can be overcome, and decide whether the hearsay is “sufficiently reliable to overcome the dangers arising from the difficulty of testing it”: Khelawon, at para. 49; Bradshaw, at para. 26.
[55] If the hearsay danger relates to the declarant’s sincerity, truthfulness will be the issue; if the hearsay danger is memory, narration, or perception, accuracy will be the issue: Bradshaw, at para. 44. The trial judge must be able to rule out any plausible alternative explanations for the hearsay statement on a balance of probabilities: Bradshaw, at para. 49.
[56] The statement must be “so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process”: Bradshaw, at para. 31, citing Khelawon, at para. 49.
[57] In Bradshaw, the Supreme Court addressed the issue of when corroborative evidence can be relied on by a trial judge in deciding whether to admit hearsay evidence under the principled exception. Justice Karakatsanis, for the majority, held that “[t]o 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”: Bradshaw, at para. 30.
[58] The circumstances in which a hearsay statement was made may, on their own, enable the trial judge to rule out any plausible alternative explanations for the statement on a balance of probabilities, bearing in mind the specific hearsay dangers associated with the statement: see Bradshaw, at paras. 3, 44 and 47. In such cases, extrinsic evidence need not be considered to determine admissibility because substantive reliability has been established and the statement is admissible. Any other extrinsic evidence that tends to corroborate (or contradict) the hearsay statement, if admissible, will go to ultimate reliability, not threshold reliability. It is for the trier of fact to decide how much reliance is to be placed on the hearsay statement in the context of the entire evidence which may include evidence that supports or undermines the proffered truth in the hearsay statement: Khelawon, at para. 50.
[59] However, if substantive reliability is not met after examining the circumstances in which the statement was made, trial judges may turn to corroborative evidence to establish substantive reliability provided that the corroborative evidence is “trustworthy” and 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”: Bradshaw, at paras. 38, 44, and 50.
[60] In other words, while corroborative evidence may provide trial judges with additional evidentiary guarantees of the statement’s inherent trustworthiness, it is not a prerequisite and its absence does not, by itself, raise a concern about the substantive reliability of the statement. Another appellate court has drawn a similar conclusion: see Hall (MBCA), at paras. 79-85.
[61] There are strong policy reasons for limiting the use of corroborative evidence in this manner. For example, as noted by the court in Bradshaw, if a trial judge is entitled to consider any extrinsic evidence that corroborates any part of a hearsay statement when assessing its threshold reliability, the voir dire could become an unwieldy trial within a trial. There is also a risk that flawed inculpatory hearsay evidence could be admitted simply because there is strong evidence of the accused’s guilt: Bradshaw, at para. 42; R. v. Laure, 2018 YKCA 9, 47 C.R. (7th) 133, at para. 93, aff’d 2019 SCC 25, [2019] 2 S.C.R. 398.
[62] To summarize, the focus at the admissibility stage is on threshold, not ultimate reliability. The Starr/Mapara framework for determining the admissibility of hearsay evidence may be further developed as follows:
i. Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The onus is on the party tendering the evidence to show that it meets the requirements of a traditional exception or the principled approach.
ii. Evidence that falls under a traditional exception to the hearsay rule is presumptively admissible as traditional exceptions embody circumstantial guarantees of trustworthiness. (In the case of a spontaneous utterance exception, the inherent reliability stems from the requirement that the statement was made contemporaneously with a startling event that dominates the mind.)
a. In “rare cases” however, evidence falling within an existing traditional exception may be excluded because there are “special features” such that the hearsay statement does not meet the requirements of the principled approach in the particular circumstances of the case. The onus rests on the party resisting admission.
b. In the context of the spontaneous utterance exception, the basis for asserting a “rare cases” exception includes circumstances of gross intoxication, highly impaired vision, and exceptionally difficult viewing conditions, which are sufficiently grave that the trial judge cannot exclude the possibility of error or inaccuracy on a balance of probabilities. However, the “rare cases” exception does not include weaknesses that go to the ultimate reliability of the evidence or reliability concerns that are inherent in the traditional exception.
iii. Hearsay evidence that does not fall under a traditional exception may still be admitted under the principled approach if sufficient indicia of necessity and threshold reliability are established on a voir dire on a balance of probabilities. This is established by satisfying the following criteria:
a. Threshold reliability (or reliability for the purpose of admission into evidence only) may be established through procedural reliability, substantive reliability, or both.
b. To establish procedural reliability, there must be adequate substitutes for testing the evidence and negating the hearsay dangers arising from a lack of oath, presence, and cross-examination. Procedural reliability is concerned with whether there is a satisfactory basis to rationally evaluate the statement.
c. To establish substantive reliability, the circumstances surrounding the statement itself must provide sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy. This is a functional inquiry. Substantive reliability is concerned with whether there is a rational basis to reject alternative explanations for the statement, other than the declarant’s truthfulness or accuracy. Where hearsay evidence has sufficient features of substantive reliability, there is no need to consider any extrinsic evidence that corroborates or conflicts with the statement. Courts should be wary not to turn the principled approach into a “rigid pigeon-holing analysis”: Khelawon, at paras. 44-45.
d. If substantive reliability is still lacking after examining the circumstances surrounding the statement, trial judges can rely on corroborative evidence to establish substantive reliability only if the corroborative evidence meets the criteria set out by the Supreme Court in Bradshaw.
e. The process set out in Bradshaw is as follows: (i) identify the material aspects of the hearsay statement tendered for its truth, (ii) identify the hearsay dangers raised, (iii) consider alternative, even speculative, explanations for the statement, and (iv) determine whether 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.
Assessing the Adequacy of the Jury Instruction
[63] A jury instruction must be assessed using a contextual approach to determine whether there were deficiencies in the charge which may have led to a miscarriage of justice. The test is whether the instruction was adequate: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at paras. 8-9, 39-40.
[64] No specific formula or wording is required: R. v. Hay, 2013 SCC 61, [2013] 3 S.C.R. 694, at para. 48; R. v. McFarlane, 2020 ONCA 548, 393 C.C.C. (3d) 253, at para. 79.
