Threshold Reliability of Hearsay: Inconsistencies in the Declarant’s Statement
In exceptional cases, hearsay evidence can be
admitted under the principled approach if it satisfies the twin requirements of
necessity and reliability:
See R.
v. Khelawon, 2006
SCC 57 (CanLII), [2006] 2 S.C.R. 787,
at para. 9; see also R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R.
531, 11 W.C.B. (2d) 10; R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R.
915, 94 D.L.R. (4th) 590; and R. v. Starr,
2000 SCC 40 (CanLII), [2000] 2 S.C.R. 144.
In determining whether hearsay is sufficiently inherently
trustworthy to warrant its admission, the court may consider not only the
circumstances surrounding the making of the statement but other evidence
properly before the trier of fact supporting or undermining the accuracy of the
out-of-court statement.
R. v. Dupe, 2016 ONCA 653
(CanLII), [2016] O.J. No. 4586, at para. 46.
For
instance, inconsistencies in the declarant’s statement/s can serve to undermine
its reliability.
See for instance, See R.
v. Ngoddy, 2016 ONSC 5921, aff’d 2017 ONCA 499 (CanLII).
Stuart O'Connell, O'Connell Law Group (leadersinlaw.ca).
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