Les principes concernant l’exception raisonnée à la règle du ouï-dire et son fondement succinctement repris par la Cour d’appel de Colombie‑Britannique

R. v. Post, 2007 BCCA 123 (CanLII)

[47] The Court restates much of what is now well settled law:

1. A hearsay statement is an out-of-court statement adduced to prove the truth of its contents, in the absence of a contemporaneous opportunity to cross-examine the declarant.

2. Hearsay evidence is presumptively inadmissible.

3. It is inadmissible because generally it is not possible to test the reliability of a hearsay statement.

4. A hearsay statement may be admitted for its truth if it is shown to be both necessary and reliable.

5. Its reliability must be sufficient to overcome the dangers arising from the difficulties of testing it.

6. The onus of establishing, on a balance of probability, both necessity and reliability is on the person who seeks to adduce the evidence.

7. The overarching principle is trial fairness which embraces not only the rights of the accused, but broader societal concerns including truth as the goal of the trial process.

8. There are two main ways of establishing reliability. The first is that because of the circumstances in which the statement was made, there is no real concern about the statement’s truth. This approach is embodied in traditional exceptions to the rule against hearsay such as dying declarations, spontaneous utterances, and statements against pecuniary interest.

9. The second way of establishing reliability is because the statement’s truth and accuracy can be sufficiently tested. The optimal means of testing reliability is to have the declarant state the evidence in court, under oath, and subject to contemporaneous cross-examination. In some cases where the optimal means are unavailable, it will still be possible to sufficiently test the truth and accuracy of the evidence because of the presence of adequate substitutes, including (a) an oath or its equivalent; (b) an opportunity to observe the statement being made (e.g. a video); and (c) the opportunity to cross-examine the declarant on his or her earlier statement.

10. Trial fairness requires consideration of factors beyond necessity and reliability. Even if those two factors are met, the trial judge has a discretion to exclude hearsay evidence where its probative value is outweighed by its prejudicial effect.

11. The trial judge must also be satisfied on a balance of probabilities that the statement was not the product of coercion of any form, whether involving threats, promises, excessively leading questions by the investigator or other person in a position of authority, or other forms of investigatory misconduct.

12. There is a distinction between threshold reliability (i.e. reliability sufficient to be admissible) which is a legal question for the judge; and ultimate reliability, which is a question for the trier of fact.