Threshold Reliability of Hearsay--Substantive Reliability

In R. v. Youvarajah, 2013 SCC 41 (CanLII), [2013] 2 S.C.R. 720, at para. 30, the Supreme Court of Canada re-affirmed that threshold reliability may be established by: (1) the presence of adequate substitutes for testing truth and accuracy (procedural reliability); and/or (2) sufficient circumstantial guarantees of reliability, or an inherent trustworthiness (substantive reliability), and noted that these two principal ways of demonstrating threshold reliability are “not mutually exclusive.” 

See R. v. Devine, 2008 SCC 36 (CanLII), [2008] 2 S.C.R. 283, at para. 22; R. v. Singh, 2010 ONCA 808 (CanLII), 266 C.C.C. (3d) 466, at para. 34; R. v. Adjei, 2013 ONCA 512 (CanLII), 309 O.A.C. 328, at paras. 32-40; R. v. Carroll, 2014 ONCA 2 (CanLII), 304 C.C.C. (3d) 252, at paras. 99-105; R. v. M.C., 2014 ONCA 611 (CanLII), 314 C.C.C. (3d) 336, at paras. 52-57; R. v. Kanagalingam, 2014 ONCA 727 (CanLII), 315 C.C.C. (3d) 199, at para. 31; R. v. Napope, 2015 ABCA 27 (CanLII), at paras. 26-34; R. v. Nataucappo, 2015 SKCA 28 (CanLII), [2015] S.J. No. 155, at paras. 30-40.

The central reason for the presumptive exclusion of hearsay is the general inability to test the reliability of hearsay statements.  The absence of the hearsay declarant from the courtroom may make it impossible to inquire into the declarant’s perception, memory, narration or sincerity.  The declarant’s absence also makes it difficult for the trier of fact, whether judge or jury, to assess what weight, if any, to assign to a statement made by a person whom the trier of fact has not seen or heard and who has not been cross-examined, like other witnesses, in the presence of the trier of fact:

R. v. J.M., 2010 ONCA 117 (CanLII), 251 C.C.C. (3d) 325, at para 51; R. v. Khelawon, 2006 SCC 57 (CanLII), [2006] 2 S.C.R. 787 at paras. 2, 35.

The reliability requirement in the principled approach to the exceptional admission of hearsay is aimed at identifying those cases in which the general inability to test the reliability of the statement has been sufficiently overcome to justify reception of the evidence: 

R. v. J.M., at para. 52; Khelawon at para. 61.

Substantive Reliability

In R. v. J.M., at para. 54, Watt J.A., delivering the judgment of the Court of Appeal for Ontario, observed that, where a party seeks to satisfy the requirement of reliability on the basis of the circumstances in which the hearsay statement was made, some of the relevant factors to be considered include:

(1) the timing of the statement in relation to the event reported;

(2) the absence of a motive to lie on the part of the declarant;

(3) the presence or absence of leading questions or other forms of prompting;

(4) the nature of the event reported;

(5) the likelihood of the declarant’s knowledge of the event, apart from its occurrence; and

(6) confirmation of the event reported by physical evidence. 

Watt J.A. also noted that this inquiry involves a “functional” consideration of whether the circumstances in which the statement was made “have sufficiently allayed concerns about perception, memory, sincerity and narration, the traditional and inherent hearsay dangers.” 

See R. v. D.(G.N.) (1993), 81 C.C.C. (3d) 65 (Ont.C.A.), at pp. 78-79, R. v. P.C.C., 2007 ONCA 236 (CanLII), [2007] O.J. No. 1171, at para. 6.

Stuart O'Connell, O'Connell Law Group (leadersinlaw.ca).