Friday, June 15, 2012

Principled approach to hearsay and reliability

R v Gardipy, 2012 SKCA 58 is a recent Saskatchewan decision with a helpful summary of the reliability indicia for the principled approach to the hearsay rule:

[16]  Sean’s statement clearly constitutes hearsay.  It was made out of court and the Crown seeks to introduce it for the truth of its contents.

[17]  The framework governing the admission of hearsay evidence was neatly summarized in R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358 at para. 15:

15       . . . Based on the Starr decision, [2000 SCC 40], the following framework emerges for considering the admissibility of hearsay evidence:
(a)        Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions to the hearsay rule remain presumptively in place.
(b)        A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by the principled approach. The exception can be modified as necessary to bring it into compliance.
(c)        In "rare cases", evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case.
(d)        If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity are established on a voir dire.

[20]  The criterion of reliability is usually met in one of two manners.  First, by reference to the way in which the statement in question came about.  Second, by showing that, in all of the circumstances, the ultimate trier of fact will be in a position to sufficiently assess the worth of the statement.  These two approaches to demonstrating reliability are not mutually exclusive. See:R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298 at para. 35.

1 comment:

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