AuthorCrisp, Glen
PositionHearsay evidence - Canada

La preuve par oui-dire doit repondre a la double exigence de la fiabilite et de la necessite afin que le contenu soit juge recevable. Cette analyse fondee sur des principes, ou les exceptions prevues en common law sont de plus en plus limitees, reflete l'etat du droit tel qu'il a ete defini par la Cour supreme du Canda en 1990 dans l'affaire R. C. Khan. Les circumstances entourant les declarations par oui-dire ne sont pas circonscrites a une liste determinee toutefois, et les contradictions brouillent l'application dans ce contexte des regles de la preuve extrinseque, en particulier pour evaluer la fiabilite--le seuil de fiabilite. Cela a donne lieu a beaucoup d'incertitude devant les tribunaux de premiere instance et d'appel et a servi de catalyseur a la decision unanime de la Cour supreme du Canada dans l'affaire R. c. Khelawon rendue en decembre 2006.

L'auteur soutient que la Cour a bien brosse les parametres de l'analyse a utiliser pour evaluer le seuil de fiabilite dans une approche fondee sur des principes, mais qu'elle a moins bien reussi a presenter un tableau complet de l'applicabilite des differents genres de preuve extrinseque pour les fins de l'evaluation du seuil de fiabilite a l'interieur de ces parametres. Les fondements des conclusions de la juge Charron dans l'affaire Khelawon sont revus dans ce commentaire, en soulignant dans quelle mesure l'ambiguite persiste relativement a l'application de la preuve extrinseque et suggere comment il sera t preferable d'evaluer le seuil de fiabilite dans l'avenir.

Hearsay evidence must meet the twin requirements of reliability and necessity in order to be admissible for the truth of its contents. This principled approach, with increasingly limited common-law exceptions, has been the state of the lave since it was adopted by the Supreme Court of Canada in 1990 in R. v. Khan. The circumstances surrounding the making of hearsay statements are not limited to any finite list however and the application of extrinsic evidence in particular in assessing reliability--threshold reliability--within the principled approach has become mired in contradiction. This has led to a great deal of uncertainty at both the trial and appellate court levels and was the catalyst for the unanimous Supreme Court of Canada decision in R. v. Khelawon in December of 2006.

The author contends that the Court was successful in generally outlining the proper framework of analysis that one should employ in assessing threshold reliability within the principled approach. The Court failed however to completely resolve the applicability of specific types of extrinsic evidence to the assessment of threshold reliability within this framework. This comment reviews the basis for Justice Charron's conclusions in Khelawon, examines the extent to which ambiguity still exists in the application of extrinsic evidence and attempts to answer how best to assess threshold reliability in the future.

Table of Contents I. INTRODUCTION II. R. v, KHELAWON--THE FACTS A. The Need to Rely Upon Hearsay Evidence B. The Lower Court Rulings in Khelawon and the Need for Clarification III. THE STATE OF THE LAW BEFORE KHELAWON A. The Importance of a Logical Framework of Analysis B. Analyzing the Previous Caselaw and its Corresponding Principles 1. Khan/Smith Approach--The Unavailable Witness (a) R. v. Khan The Advent of the Principled Exception to the Hearsay Rule (b) R. v. Smith--Applying and Expanding Upon the Principled Exception to the Hearsay Rule 2. B.(K.G.)/Hawkins Approach--The Lying or Uncooperative Witness (a) R. v. B.(K.G.)--Admitting Prior Inconsistent Statements as an Exception to the Hearsay Rule (b) R. v. Hawkins--An Application of the B.(K.G.) Principles 3. U.(F.J.) Approach--A Combined Effort (a) R. v. U.(F.J.)--The Uncooperative Witness and the Insufficiently Recorded Statement 4. Starr and the Confusion Surrounding the use of Extrinsic Evidence in Assessing Threshold Reliability IV. A CONCLUSION TO THE CONFUSION? THE CLARITY OF JUSTICE CHARRON'S KHELAWON DECISION A. Reconciling the Role of Extrinsic Evidence in the Assessment of the Reliability Threshold B. The Khelawon Approach to the Assessment of the Threshold Reliability C. Summary--The Tension Between Ultimate & Threshold Reliability V. THE EFFECT OF KHELAWON A. Jurisprudence Post-Khelawon 1. R. v. T.G.N 2. R. v. Couture B. Procedural Caution VI. CONCLUSION I. INTRODUCTION

In the past decade and a hall, the Supreme Court of Canada has attempted to incorporate both flexibility and functionality into the assessment of presumptively inadmissible hearsay evidence. (1) As put forth initially in R. v. Khan, (2) and expanded upon in cases such as R. v. Starr (3), the court has created a principled exception to the hearsay rule (4) that allows for previously inadmissible hearsay evidence to be put before the trier of fact if it meets the twin criteria of necessity and reliability. (5) Within this principled analysis, the necessity component is usually the more straightforward. If the witness who gave a previous statement has passed away or if the witness is available but is simply not adopting his or her previous statement as being true, and there exists no other way to get the evidence before the court, then the necessity of relying upon hearsay evidence becomes fairly obvious. (6) Conversely, it is the amorphous concept of reliability--or, more appropriately, threshold reliability--within the principled approach that becomes the focal point and the fulcrum upon which many hearsay applications rise and fall. If a hearsay statement does not meet the reliability standard, it will not be admissible and the trier of fact will not have a chance to consider the evidence as part of its deliberations. Given its importance, it is not surprising that threshold reliability has been the subject of a large volume of appellate caselaw. What is surprising, however, is that at the time that the Supreme Court of Canada examined the matter again in Khelawon, (7) it was still not clear how lower courts were to approach the subject.

Unfortunately, after Khelawon, the issue remains unsettled to varying degrees. This case comment submits that although the Supreme Court was successful in clarifying the proper framework for assessing threshold reliability, the Court round that resolving the role of extrinsic evidence, and specifically extrinsic statements, within this framework was a more difficult proposition. In consideration of how this occurred it will first be necessary, after outlining the facts of Khelawon, to review the same cases and principles that were reviewed by Justice Charron for the unanimous Court in Khelawon. In addition to understanding the evolution of threshold reliability, this will also provide an opportunity to understand the confusion that existed and the reason why Khelawon was necessary in the first place.

The ruling itself, including the substantive and procedural impact of Justice Charron's decision, will then be analyzed. As part of this examination consistent with the framework of analysis set out in Khelawon--a comprehensive step-by-step approach to the assessment of hearsay evidence, and the reliability threshold in particular, will be presented. Two cases that have applied and interpreted Khelawon will also be reviewed, reflecting the relative strengths and weaknesses of the Supreme Court's decision and the challenges that remain.


    1. The Need to Rely Upon Hearsay Evidence At trial, the Crown wished to tender previously recorded statements from complainants who had alleged that the manager of the nursing home where they resided had threatened to kill them and/or assault them.

      The initial complaint came about in May 1999 when a cook who was employed at the residence found Mr. Skupien, a resident of the Bloor West Retirement Village in Toronto, badly injured in his room. Mr. Skupien told the cook, Ms. Stangrat, and eventually the police by way of a videotaped statement, that the manager had threatened to kill him and was responsible for the condition in which he was found. The statement was not given under oath, but Mr. Skupien did reply affirmatively when he was asked whether or not he understood the importance of telling the truth. He was also told about the possible criminal consequences that might result if he was found to be lying.

      As a result of the statement given to them by Mr. Skupien, the police attended at the nursing home and arrested the manager, Ramnarine Khelawon. Armed with the names of other possible complainants given to them by Ms. Stangrat, the police then went back to the nursing home the next day and spoke with other residents. (8)

      At the end of the police investigation there were charges laid against Mr. Khelawon in relation to rive different complainants, all of whom resided at the retirement home: Mr. Skupien, Mr. Dinino, Ms. Poliszak, Mr. Grocholska and Mr. Peiszterer. At the time of trial, approximately two and a hall years after the initial allegation was made, four of the five complainants had passed away from causes unrelated to the allegations against Mr. Khelawon, while the fifth was round incompetent to testify. (9) As a result, the Crown attempted to have each of the previous statements entered for the truth of its contents by applying for the evidence to be admitted via the principled exception to the hearsay rule.

    2. The Lower Court Rulings in Khelawon and the need for Clarification

      On the voir dire at trial, the Crown was successful in its application to have the videotaped statements of Mr. Skupien, Mr. Dinino and Ms. Poliszak admitted on the basis that the statements met the twin tests of necessity and reliability. (10)

      In support of the view that the statements of Mr. Dinino and Mr. Skupien were sufficiently reliable, expert opinion evidence was entered by the Crown as it related to the declarants' mental health and whether or not they understood the importance of their...

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