R. v. Blackman (L.), (2008) 239 O.A.C. 368 (SCC)

• Judge: McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.
• Court: Supreme Court (Canada)
• Case Date: June 26, 2008
• Jurisdiction: Canada (Federal)
• Citations: (2008), 239 O.A.C. 368 (SCC);2008 SCC 37;EYB 2008-134999;294 DLR (4th) 456;[2008] SCJ No 38 (QL);232 CCC (3d) 233;JE 2008-1337;239 OAC 368;[2008] 2 SCR 298;77 WCB (2d) 808;92 OR (3d) 799;376 NR 265;57 CR (6th) 12

R. v. Blackman (L.) (2008), 239 O.A.C. 368 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2008] O.A.C. TBEd. JN.124

Leucherin Blackman (appellant) v. Her Majesty The Queen (respondent)

(31885; 2008 SCC 37; 2008 CSC 37)

Indexed As: R. v. Blackman (L.)

Supreme Court of Canada

McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.

June 26, 2008.

Summary:

Ellison was fatally shot by one of a group of four men outside a nightclub. An eyewitness recognized Blackman as the shooter and identified him to police by a detailed description. Ellison had made a statement to his mother indicating that Blackman had a motive to kill him. Blackman was charged with murder.

The Ontario Superior Court admitted the hearsay statement to the mother and convicted Blackman. Blackman appealed.

The Ontario Court of Appeal, in a judgment reported (2006), 218 O.A.C. 291, dismissed the appeal. Blackman appealed. The sole issue on appeal was the admissibility of the hearsay statement made by Ellison to his mother under the principled approach to hearsay.

The Supreme Court of Canada dismissed the appeal. The statements were properly admitted for the truth of their contents under the principled approach to hearsay.

Criminal Law - Topic 5209

Evidence and witnesses - Admissibility and relevancy - Prejudicial evidence - [See first Evidence - Topic 1527 ].

Evidence - Topic 1026

Relevant facts - Relevance and materiality - Admissibility - Prejudicial evidence - [See first Evidence - Topic 1527 ].

Evidence - Topic 1125

Relevant facts - Relevance and materiality - Relevance of evidence offered - General - The Supreme Court of Canada, in discussing the threshold relevance of evidence, stated that "relevance can only be fully assessed in the context of other evidence at trial. However, as a threshold for admissibility, the assessment of relevance is an ongoing and dynamic process that cannot wait for the conclusion of the trial for resolution. ... Often, for pragmatic reasons, relevance must be determined on the basis of the submissions of counsel. ... establishing threshold relevance cannot be an exacting standard ... 'To be logically relevant, an item of evidence does not have to firmly establish, on any standard, the truth or falsity of a fact in issue. The evidence must simply tend to "increase or diminish the probability of the existence of a fact in issue."'" - See paragraph 30.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - Ellison was shot by one of four men - A witness identified the accused, whom he knew for several years, as the shooter - The trial judge, in convicting the accused of murder, admitted hearsay statements made by Ellison to his mother - The statements indicated a motive for the accused to kill Ellison, which supported the Crown's theory of revenge for an earlier stabbing of the accused by Ellison  - The trial judge admitted the mother's testimony under the principled exception to the hearsay rule, finding them sufficiently reliable and finding that the probative value outweighed the prejudicial effect - The Supreme Court of Canada dismissed the accused's appeal - The trial judge applied the correct threshold test respecting reliability and  properly considered factors surrounding the statements which substantially negated the possibility of inaccuracy and fabrication - The trial judge misspoke when he stated that there was nothing "inherently unreliable" about the statements - However, the trial judge applied the correct test - Hearsay was presumptively unreliable - The trial judge properly looked for, and found, indicia of trustworthiness to displace the general exclusionary rule - There was circumstantial evidence that supported the inference that Ellison had no known motive to lie to his mother at the particular time and in the particular circumstances in which the statements were made - Although it was incorrect to find that the statements were clearly against Ellison's own interests, this mischaracterization had no significant bearing on the trial judge's ruling - See paragraphs 33 to 52.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - Ellison was fatally shot outside a nightclub - Blackman was charged with murder - The Crown advanced a theory that Blackman was acting in revenge for Ellison having stabbed him - Evidence supporting the theory included statements that Ellison had made to his mother about having stabbed someone - The trial judge admitted the mother's testimony under the principled exception to the hearsay rule - Blackman was convicted - He appealed, asserting, inter alia, that the trial judge had erred regarding threshold reliability in his treatment of the mother's credibility and reliability - The Ontario Court of Appeal dismissed the appeal - The trial judge held that the requisite reliability analysis was concerned with Ellison's reliability and the reliability of the statements, rather than the credibility and reliability of the person to whom the statements were made - This holding was unimpeachable - The quality of the mother's evidence was irrelevant to threshold reliability - Threshold reliability stood for a substitute for cross-examination of the declarant, rather than of the narrator - Here, the mother's credibility and reliability were subject to full cross-examination - The Supreme Court of Canada agreed, stating that "in cases where the recipient of the out-of-court statement is not available for cross-examination, his or her credibility and truthfulness may play an important role in assessing the question of threshold admissibility. ... However, when the recipient is available for cross-examination, those difficulties can safely be left to the ultimate trier of fact to consider." - See paragraph 51.

Evidence - Topic 1629

Hearsay rule - Hearsay rule exceptions and exclusions - Statements of deceased persons - Statements against interest - [See first Evidence - Topic 1527 ].

Cases Noticed:

R. v. Czibulka (L.) (2004), 190 O.A.C. 1; 189 C.C.C.(3d) 199 (C.A.), dist. [para. 26].

R. v. Arp (B.), [1998] 3 S.C.R. 339; 232 N.R. 317; 114 B.C.A.C. 1; 186 W.A.C. 1, refd to. [para. 30].

R. v. Mapara (S.) et al., [2005] 1 S.C.R. 358; 332 N.R. 244; 211 B.C.A.C. 1; 349 W.A.C. 1; 2005 SCC 23, refd to. [para. 33].

R. v. Couture (D.R.), [2007] 2 S.C.R. 517; 364 N.R. 1; 244 B.C.A.C. 1; 403 W.A.C. 1; 2007 SCC 28, refd to. [para. 38].

R. v. Khelawon (R.), [2006] 2 S.C.R. 787; 355 N.R. 267; 220 O.A.C. 338; 2006 SCC 57, refd to. [para. 46].

R. v. Humaid (A.A.) (2006), 210 O.A.C. 68; 208 C.C.C.(3d) 43 (C.A.), refd to. [para. 47].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161; 2000 SCC 40, refd to. [para. 49].

R. v. Khan (A.), [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353, refd to. [para. 55].

Authors and Works Noticed:

Paciocco, David M., and Stuesser, Lee, The Law of Evidence (4th Ed. 2005), p. 29 [para. 30].

Counsel:

C. Leslie Maunder and Mark Halfyard, for the appellant;

Jennifer M. Woollcombe, for the respondent.

Solicitors of Record:

Pinkofskys, Toronto, Ontario, for the appellant;

Attorney General of Ontario, Toronto, Ontario, for the respondent.

This appeal was heard on December 10, 2007, before McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ., of the Supreme Court of Canada.

On June 26, 2008, Charron, J., delivered the following judgment for the Court in both official languages.