[33] The trial judge's hearsay ruling dealt at length with the admissibility of several hearsay statements made by Ms. Baxter and Ms. Diedrick. In setting out the applicable legal principles and reviewing the admissibility of the statements made by Ms. Baxter and the audiotaped statement of Ms. Diedrick in December 1996, the trial judge considered the necessity and reliability components of the principled exception to the rule excluding hearsay evidence. However, in addressing the admissibility of Ms. Diedrick's testimony at Mr. Whyte's preliminary inquiry and trial, the trial judge focussed exclusively on the necessity component of the admissibility inquiry. Relying on R. v. D.(G.N.) (1993), 81 C.C.C. (3d) 65 (Ont. C.A.), leave to appeal to S.C.C. refused, [1993] S.C.C.A. No. 257, at p. 78, he held that with the exception of the identification of the appellant's photo, Ms. Diedrick's testimony at the preliminary inquiry and trial did not meet the necessity criterion because it added nothing of substance to the information she had provided in her December 1996 audiotaped statement. That holding is not challenged.
[34] Having concluded that the part of Ms. Diedrick's testimony in which she identified the photograph of the appellant met the necessity requirement, the trial judge should have gone on to consider whether that evidence was sufficiently reliable to justify its admission at the appellant's trial despite its hearsay nature. The trial judge's failure to conduct that inquiry is an error in law. On my review of the voir dire record, the Crown failed to offer evidence on which a finding of threshold reliability could reasonably have been made.
[35] Hearsay is presumptively inadmissible because it is inherently unreliable. The unreliability of hearsay flows in large measure from the difficulties encountered in effectively challenging hearsay evidence. The threshold reliability component of the admissibility inquiry protects the integrity of the trial process by insisting that the party proffering hearsay evidence demonstrate that it is sufficiently reliable to overcome the dangers inherent in hearsay evidence: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at paras. 49, 59-65; R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 35; R. v. Devine, 2008 SCC 36, [2008] 2 S.C.R. 283, at para. 19.
[36] Threshold reliability is usually met in one of two ways, although they are not mutually exclusive. First, the court may be satisfied that the circumstances in which the statement was made provide sufficient guarantees of the trustworthiness of the statement to negate reliability concerns. R. v. Khan, [1990] 2 S.C.R. 531 provides an excellent example of a case in which the circumstances surrounding the making of the statement by the young complainant, as well as the content of the statement itself, provided a level of reliability that justified its admission.
[37] Threshold reliability may also be established if there are means by which the reliability of the statement can be sufficiently tested at trial despite its hearsay nature. Cross-examination by the party against whom the hearsay statement is tendered at the time the hearsay statement was made is perhaps the most powerful way in which to establish the threshold reliability of a hearsay statement. For example, where a witness testifies in a prior proceeding in relation to the charge and is cross-examined by the accused's counsel, that statement may well be admitted at a subsequent trial on the basis that the contemporaneous cross-examination of the declarant rendered the statement sufficiently reliable to justify its admission at that subsequent trial: R. v. Hawkins, [1996] 3 S.C.R. 1043, at paras. 76-80.
[38] Even where there was no opportunity to cross-examine when the statement was made, the ability to meaningfully cross-examine the hearsay declarant on the hearsay statement at trial will also often suffice to establish threshold reliability: Khelawon, at paras. 76-79; R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, at paras. 87-88; Devine, at paras. 22-25
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