Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog

In R. v. Furey, 2022 SCC 52, December 2, 2022, the accused was convicted of a number of offences, including the offence of assault.  At the trial, Judge Skanes ruled that a statement provided by a witness who had subsequently died was admissible.  On appeal, a majority of the Court of Appeal of Newfoundland and Labrador (2021 NLCA 59), differed, concluding as follows (at paragraph 13):

…increased necessity does not have the effect of reducing the threshold of reliability that is required in order to render an out-of-court statement admissible.  Reliability is a key component when assessing whether an out-of-court statement by a deceased person is admissible for the truth of its contents.  It follows that the trial judge erred insofar as she relied on and applied the erroneous statement of the law.

The Crown appealed to the Supreme Court of Canada as of right. 

The appeal was allowed and the convictions were reinstated.  The Supreme Court concluded that the trial judge did not err.  It rendered a brief oral judgment in which it specified that it “has never said that reliability becomes more flexible as necessity increases”:

We are of the view that the appeal should be allowed. The trial judge did not err in admitting the hearsay evidence on the voir dire.

However, we would emphasize that the necessity of receiving hearsay evidence is never so great that the principled approach’s requirement of threshold reliability can be sacrificed. Admitting unreliable hearsay evidence against an accused compromises trial fairness, risks wrongful convictions and undermines the integrity of the trial process (R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at paras. 47-49).

This Court has recognized that necessity and reliability — making up the principled approach to hearsay evidence — “work in tandem”; in particular, “if the reliability of the evidence is sufficiently established, the necessity requirement can be relaxed” (R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520, at para. 72). Indeed, “[i]n the interest of seeking the truth, the very high reliability of the statement [can] rende[r] its substantive admission necessary” (Khelawon, at para. 86, citing R. v. U. (F.J.), [1995] 3 S.C.R. 764).

However, this Court has never said that reliability becomes more flexible as necessity increases. While the indicia of reliability required to address specific hearsay concerns may vary with the circumstances of each case (Khelawon, at para. 78), threshold reliability must be established in every case. As this Court affirmed in R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, “the threshold reliability standard always remains high — the statement must be sufficiently reliable to overcome the specific hearsay dangers it presents” (para. 32, citing Khelawon, at para. 49). Indeed, where this Court has considered the out-of-court statements of deceased declarants, we have consistently insisted on “circumstantial guarantee[s] of trustworthiness” (R. v. Smith, [1992] 2 S.C.R. 915, at pp. 937-38), or “a sufficient substitute basis for testing the evidence” (Khelawon, at para. 105). Thus, in all cases, whatever may be the degree of necessity, such evidence must meet the requirement of threshold reliability in order to be admissible.

That said, we do not read the trial judge’s reasons as based on a relaxed threshold of reliability. Rather, they show that she applied the reliability threshold described by this Court in Bradshaw, at para. 31. She remarked that the statement was video-recorded, “reasonably contemporaneous with the events and was given to police without hesitation” (voir dire reasons, at paras. 28-29, reproduced in A.R., vol. I, at p. 12). She also considered corroborative evidence, and determined that the explanations alternative to the statement’s truth “would seem unlikely” (para. 44). Based on these considerations, she concluded “that contemporaneous cross-examination, while preferable as in any case, would not likely add much to the process of determining the truth of what [the declarant] said in his statement” (para. 46).

Thus, we are satisfied that the trial judge’s reasons, read as a whole, show that she properly applied the law relating to the admission of hearsay evidence, and did not relax the minimum threshold of reliability. We agree with the dissent in the Court of Appeal that the references in the final paragraphs of the trial judge’s reasons do not undermine her previous conclusion that threshold reliability was established.

For these reasons, we allow the appeal, set aside the order of the Court of Appeal, and restore the respondent’s convictions.