Hearsay and Threshold Reliability

Hearsay evidence — an out-of-court statement tendered for the truth of its contents — is presumptively inadmissible.  This is because the dangers associated with hearsay evidence may undermine the truth-seeking function of a trial or its fairness.  These dangers typically include an inability to test and assess a declarant’s perception, memory, narration, or sincerity: 

R. v. Khelawon, 2006 SCC 57 (CanLII), [2006] 2 S.C.R. 787, at para. 2.

The law has conventionally favoured the evidence of witnesses who give evidence in court because they can be observed, under oath or affirmation, and their credibility and reliability can be tested by cross-examination.  These elements help the trier of fact assess the credibility of the declarant or witness, the reliability of the evidence, and the degree of probative force it carries.  When these elements are absent, as is the case with a statement made outside of the court, it is more difficult for the trier of fact to make these assessments.

Over time, however, the law has recognized that in certain circumstances, it may be safe to rely on out-of-court statements for the truth of their contents.  Exceptions to the hearsay rule developed for statements carrying certain guarantees of inherent trustworthiness, often because of the circumstances in which they were made (for example, dying declarations and declarations that are adverse in interest).

In addition to the traditional exceptions, however, the Supreme Court of Canada developed a principled approach that permits trial judges to admit hearsay evidence if it meets the twin threshold requirements of necessity and reliability.  This is a flexible case-by-case examination.  

See especially R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531; R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915; K.G.B.; R. v. U. (F.J.), 1995 CanLII 74 (SCC), [1995] 3 S.C.R. 764; and R. v. Blackman, 2008 SCC 37 (CanLII), [2008] 2 S.C.R. 298, at para. 38.  

With the increased flexibility provided by the principled approach, however, the gatekeeper function of the trial judge becomes more complex and nuanced.

Where a witness recants from a prior statement, necessity is established.

Khelawon, at para. 78. 

The trial judge, as the evidentiary gatekeeper, assesses the threshold reliability of the hearsay statement.  The decision as to the ultimate reliability of the statement is left to the trier of fact.

Khelawon, at para. 2.

Even if the necessity and reliability of the hearsay evidence are proven, the trial judge maintains discretion to exclude the evidence where the “prejudicial effect is out of proportion to its probative value”: 

 Khelawon, at para. 3.

R. v. Youvarajah, [2013] 2 SCR 720, 2013 SCC 41 (CanLII), paras 18-23.