5. The Governing Principles
[89] The deceased's out-of-court statements tendered by the prosecutor to establish the truth of their contents were prima facie inadmissible because they contravened two exclusionary canons of the law of evidence. The first, which assumed paramount importance at trial, was the hearsay rule. The second, which occupied a less prominent position at trial, was the character rule.
[90] At trial, the prosecutor advanced her case for the exceptional admission of this hearsay on the principled basis, not on the ground that what was proposed qualified under an existing hearsay exception. The necessity test was met – the declarant was deceased. What remained for the trial judge to determine were two issues:
i. Were the proposed statements, or any of them, reliable?
ii. Did the probative value of any otherwise admissible hearsay exceed its prejudicial effect?
[91] The reliability requirement or criterion, an essential constituent of the principled approach to hearsay, attempts to ensure the reliability of the trial process: R. v. Khelawon, [2006] 2 S.C.R. 787, at para. 49. It does so by insisting that, to be admissible by exception to the general rule of exclusion, hearsay evidence must demonstrate a measure of reliability, which we term "threshold reliability", before it can form part of the evidentiary basis for findings of fact.
[92] To satisfy this reliability requirement, hearsay evidence must be sufficiently reliable to overcome the dangers associated with it. In the case at hand, those dangers arise from the difficulty or inability to test the evidence before the trier of fact: the declarant was not available for cross-examination before the trier of fact. And so it is that we must look to the circumstances in which the declarations were made to see whether they can serve as a surrogate for the traditional means of testing reliability, contemporaneous cross-examination. In some instances, the circumstances in which a declaration came about may render it sufficiently reliable that contemporaneous cross-examination of the declarant would add little, if anything, to the process: Khelawon, at para. 49.
[93] It should scarcely surprise that the principled approach to the exceptional admission of hearsay disavows any closed list of factors to be applied to determine whether the circumstances in which a hearsay statement came about meet the reliability requirement in an individual case. While the inquiry in circumstances like those here has as its primary focus, the circumstances surrounding the making of the statement, its borders are not so restrictive: Khelawon, at para. 100.
[94] In the end, the inquiry into reliability is at once functional and case-specific, not formulaic or subject to a priori rules. In each case, the focus of the inquiry into reliability is on the particular dangers raised by the hearsay evidence tendered for reception, and on those attributes or circumstances relied upon by the proponent to overcome those dangers: Khelawon, at para. 93; R. v. Blackman, [2008] 2 S.C.R. 298, at para. 54.
[95] Satisfaction of the necessity and reliability requirements of the principled approach to hearsay removes the hearsay rule as a barrier to admissibility, but does not guarantee that the hearsay statements will be admitted. Trial fairness may encompass factors beyond the narrow inquiry into necessity and reliability mandated by the principled approach to the admissibility of hearsay. Despite satisfaction of these two criteria, a trial judge has a discretion to exclude otherwise admissible hearsay evidence where its probative value is outweighed by its prejudicial effect: Khelawon, at para. 49.
[96] The second admissibility rule that the appellant invokes looks to the substance of the hearsay declarations, in particular their disclosure of the appellant's bad character. The character rule generally prohibits the use of character evidence as circumstantial proof of conduct: R. v. Handy, [2002] 2 S.C.R. 908, at para. 31. This exclusionary rule equally bars evidence of similar acts or extrinsic misconduct to support an inference that an accused has the propensity or disposition, in other words, character, to do the type of acts charged and, accordingly, is guilty of the offence: Handy, at para. 31. We establish guilt by proof of conduct, not by proof of character.
[97] Despite this general rule excluding character evidence as circumstantial proof of guilt, we recognize that, sometimes, evidence of prior misconduct, which tends to show bad character, may be so highly relevant and cogent that its probative value in the search for the truth outweighs any potential for misuse: Handy, at para. 41. Thus, we permit admission of this evidence by exception where its probative value exceeds its prejudicial effect.
[98] In prosecutions for domestic homicide, evidence is frequently admitted to elucidate the nature of the relationship between the accused and the deceased. This evidence, which often discloses misconduct other than that charged, not only demonstrates the nature of the relationship between the parties, but also may afford evidence of motive and animus relevant to establish the identity of the deceased's killer and the state of mind with which the killing was done: R. v. Chapman (2006), 204 C.C.C. (3d) 449 (Ont. C.A.), at para. 27; R. v. Cudjoe 2009 ONCA 543, at para. 64; R. v. Van Osselaer (2002), 167 C.C.C. (3d) 225 (B.C. C.A.), at para. 23, leave to appeal refused (2003), 313 N.R. 199n (S.C.C. ).
[99] Evidence of extrinsic misconduct comes with baggage – moral prejudice (the potential stigma of "bad personhood") and reasoning prejudice (including potential confusion and distraction of the jury from the actual crime charged): Handy, at para. 100.
[100] Where evidence of extrinsic misconduct is admitted, one antidote to ensure that prejudice does not substitute for proof are mid-trial and final cautions that educate jurors about the permitted and prohibited use of the evidence. This general rule does not apply, however, where the extrinsic misconduct evidence is offered to demonstrate motive or animus towards the victim in a prosecution for unlawful homicide: R. v. Jackson (1980), 57 C.C.C. (2d) 154 (Ont. C.A.), at pp. 168-169; R. v. Merz (1999), 140 C.C.C. (3d) 259 (Ont. C.A.), at para. 59; R. v. Pasqualino (2008), 233 C.C.C. (3d) 319 (Ont. C.A.), at paras. 65-68.
[101] Appellate deference is due to the decisions of trial judges determining that hearsay evidence meets the test of threshold reliability and that the probative value of evidence, whether hearsay or extrinsic misconduct, exceeds its prejudicial effect: R. v. Couture, [2007] 2 S.C.R. 517, at paras. 81 and 132; R. v. S. (S.) (2008), 232 C.C.C. (3d) 158 (Ont. C.A.).
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