R. v. CHARLES, 2024 SCC 29, SEPTEMBER 25, 2024.
FACTS: The accused was charged with a number of offences, including assault with a weapon. At his trial, the Crown called KA as a witness. He testified that he had no recollection of the incident. The trial judge allowed the Crown to present KA’s police statement as evidence. The accused’s appeal to the Quebec Court of Appeal was denied, with a dissent.
The accused appealed to the Supreme Court of Canada, arguing that “the trial judge erred in determining that the out‑of‑court statement had the indicia of reliability required by R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, and R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, for admission into evidence” (see paragraph 1).
The Supreme Court described the issue raised as being the following (at paragraph 2):
The central issue to be determined is whether the trial judge erred in finding that the witness’s out‑of‑court statement had the indicia of reliability required according to the principles set out in our jurisprudence. This determination affords us an opportunity to reaffirm the principles laid down in Bradshaw.
HELD: The appeal was allowed and a new trial ordered. The Supreme Court indicated that it agreed “with the dissenting Court of Appeal judge that the trial judge erred in admitting the witness’s statement in writing into evidence at trial. The results of the search subsequently conducted at the witness’s residence do not meet the Bradshaw criteria for corroborative evidence. Because the Crown sought to use the witness’s statement to establish the appellant’s role in the events, it was required to show that the search results confirmed that aspect of the statement. As for the circumstances surrounding the statement, they do not support a finding that threshold reliability is established” (at paragraph 3).
The Supreme Court noted that “[h]earsay evidence is presumptively inadmissible (see, e.g., Bradshaw, at paras. 1 and 21). Its presumptive inadmissibility is due to the fact that it is often difficult to assess the truth of a statement made outside the courtroom. In Bradshaw, Karakatsanis J. explained that, generally, ‘hearsay is not taken under oath, the trier of fact cannot observe the declarant’s demeanor as she makes the statement, and hearsay is not tested through cross‑examination’” (at paragraph 43). However, the Court also noted that hearsay can be admitted if the dual criteria of necessity and threshold reliability can be established.
The Court stated that to “establish the threshold reliability of a statement, a party may demonstrate its procedural or substantive reliability” (at paragraphs 46 and 47):
Procedural reliability is established when there are adequate substitutes for testing the truth and accuracy of the statement “given that the declarant has not ‘state[d] the evidence in court, under oath, and under the scrutiny of contemporaneous cross‑examination’”…Triers of fact must have “a satisfactory basis . . . to rationally evaluate the truth and accuracy of the hearsay statement” (Bradshaw, at para. 28). Substitutes for the traditional safeguards “include a video recording of the statement, the presence of an oath, and a warning about the consequences of lying” (Bradshaw, at para. 28, citing R. v. B. (K.G.), [1993] 1 S.C.R. 740, at pp. 795‑96). Some form of cross‑examination of the declarant, such as preliminary inquiry testimony, is usually required (Bradshaw, at para. 28). Substantive reliability is established when the statement is inherently trustworthy. To determine whether this is the case, trial judges may consider the circumstances in which the statement was made as well as the evidence that corroborates or conflicts with it. The standard is a high one (Bradshaw, at para. 31). That being said, it is not necessary for reliability to be established with absolute certainty. Rather, judges must be satisfied that the statement is “so reliable that contemporaneous cross‑examination of the declarant would add little if anything to the process” (Khelawon, at para. 49, quoted in Bradshaw, at para. 31). In other words, the evidence must be “sufficiently reliable to overcome the dangers arising from the difficulty of testing it” (Bradshaw, at para. 26, quoting Khelawon, at para. 49).
