The Credibility of the Narrator of a Hearsay Statement

The basic rule in the area of presumptively inadmissible hearsay evidence is that it will be admissible for the truth of its contents only if it meets the separate requirements of "necessity" and "reliability". The criterion of “reliability” is concerned with threshold reliability, not ultimate reliability. The function of the trial judge at the voir dire stage is limited to determining whether the particular hearsay statement, for example, exhibits sufficient indicia of reliability so as to afford the trier of fact a satisfactory basis for evaluating the truth of the statement. This process is necessary, of course, because the hearsay evidence is being presented for the veracity of its content, although the person affected by it is unable to test its veracity by a cross-examining the author of the statement. The ultimate reliability of the statement and the weight to be attached to it remain determinations for the trier of fact.

General Rule: The Hearsay Narrator’s Credibility is a Matter which goes to Ultimate Reliability and Weight.

The general principle is that where the narrator of the hearsay statement is available for cross-examination at trial, the narrator’s credibility is a matter that usually can be left safely to the trier of fact to consider.

R. v. Berry, 2017 ONCA 17, at para 50; Blackman, at paras. 50-51;

R. v. Humaid (2006), 81 O.R. (3d) 456 (C.A.), at paras. 50-51, leave to appeal to S.C.C. refused, [2006] S.C.C.A. No. 232--the trial judge was found to have erred in excluding the hearsay statement on the basis that the credibility of the narrator was relevant to the threshold reliability analysis under the principled exception to the hearsay rule); R. v. Duguay, 2007 NBCA 65, 320 N.B.R. (2d) 104, at paras. 48 and 53. 

There is a caveat to this principle, however.

 The Trial Judge’s Residual Discretion to Exclude (the Humaid Caveat)

 A trial judge has a residual discretion to exclude evidence (including an otherwise admissible hearsay statement) where its potential probative value is exceeded by the potential prejudicial effect of that evidence. There may be cases where the credibility or reliability of the narrator of the out-of-court statement is so deficient that it robs the out-of-court statement of any potential probative value. In such cases a trial judge could conclude that the narrator’s evidence was so incredible or unreliable as to necessitate the exclusion of the evidence based on the exercise of his or her residual discretion.

R. v. Humaid, at para 57

The circumstances giving rise to the application of the Humaid caveat will, however, be relatively rare”.

R. v. Humaid, at para 57;

R. v. Berry, 2017 ONCA 17, at para 51.

The proposition that a trial judge is entitled to delve into the reliability or credibility of a witness of unsavoury character in determining the probative value of evidence versus its prejudicial effect is fraught with danger and difficulties. The danger is the usurpation of the role of the jury in our criminal justice system.

R. v. Duguay, at para 56, 57.

  

See R. v. Berry, 2017 ONCA 17.