Friday, June 19, 2015

Reliability criteria for exception to hearsay rule under principled approach

R. v. Taylor, 2015 ONCA 448:

[70]       The reliability requirement refers to threshold reliability, not ultimate reliability, and thus reflects the distinction between the admission of evidence and reliance upon it: Khelawon, at para. 2; and Youvarajah, at paras. 23-24. It is for the trial judge to determine whether the proponent of the evidence has established threshold reliability. Where the evidence is admitted, it is for the jury to determine how much or little they will believe of it and rely upon it in reaching their conclusion about the adequacy of the case for the Crown. 

[71]       A prior inconsistent statement of a non-accused witness may be admitted as substantive evidence if the proponent satisfies the reliability requirements established in R. v. B. (K.G.), [1993] 1 S.C.R. 740. The reliability requirement insists: 

                             i.        that the statement be under oath or its equivalent after a warning about the consequences of an untruthful statement; 

                            ii.        that the statement be videotaped in its entirety; and 

                           iii.        that the opposite party has a full opportunity to cross-examine the declarant. 

See B. (K.G.), at pp. 795-796; Youvarajah, at para. 29; and R. v. Chretien, 2014 ONCA 403, 309 C.C.C. (3d) 418, at para. 51. 

[72]       The prerequisites imposed in B. (K.G.) are not preclusive. A party may establish threshold reliability by two methods, which are not mutually exclusive: 

                             i.        the presence of adequate substitutes for testing truth and accuracy (procedural reliability); or

                            ii.        sufficient circumstantial guarantees of reliability or an inherent trustworthiness (substantive reliability). 

See Khelawon, at paras. 49 and 61-63; Youvarajah, at para. 30; Chretien, at para. 52; and R. v. Devine, 2008 SCC 36, [2008] 2 S.C.R. 283, at para. 22. 

[73]       Under the B. (K.G.) regimen, an oath is not an absolute requirement for a finding of reliability: B. (K.G.), at p. 792. Other circumstances may be sufficient to impress upon the declarant/witness the importance of telling the truth: B. (K.G.), at pp. 792 and 796. Evidence from which it can reasonably be inferred that, when the statement was made, the declarant appreciated the solemnity of the occasion and the importance of telling the truth may serve as a proxy for an oath: R. v. Trieu(2005), 195 C.C.C. (3d) 373 (Ont. C.A.), at para. 85; and R. v. Adjei, 2013 ONCA 512, 309 O.A.C. 328, leave to appeal to S.C.C. refused, [2014] S.C.C.A. No. 74, at para. 39. In addition, external evidence, which is at once itself reliable and tends to confirm, in a meaningful way, the reliability of the out-of-court statements, may compensate for the absence of an oath: Trieu, at para. 85; and Adjei, at para. 39. 

[74]       The most important factor in the procedural reliability analysis is the availability of the declarant as a witness in the proceedings so that the opposite party has a full opportunity to cross-examine him or her before the trier of fact: Youvarajah, at para. 35; Chretien, at para. 53; and R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, at paras. 92 and 95. The opportunity to cross-examine the declarant/witness before the trier of fact must be a meaningful one, however, not limited, for example, because the witness urges privilege, refuses to answer the cross-examiner's questions or claims lack of memory: Chretien, at para. 53.

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