From Khan to Khelawon: A Winding Road, or So I’ve Heard

The rules governing hearsay evidence have seen a period of dramatic upheaval since 1990, when the SCC released its judgment in R v Khan, [1990] 2 SCR 531 [Khan]. Prior to that decision, all hearsay evidence was inadmissible unless it fell within one of a number of categorical exceptions developed through the common law. Khan signaled the shift to a more flexible approach, based on the underlying principles behind both the hearsay rule and its exceptions: necessity and reliability. Thus, hearsay evidence that did not fit into one of the categorical exceptions could now be admitted if the evidence was shown to be both necessary and reliable.

Since Khan, this principled approach to hearsay evidence has undergone various modifications. Subsequent decisions by the SCC have alternately expanded and contracted the scope of the approach. R v Smith, [1992] 2 SCR 915, appeared to sound the death knell for categorical exceptions, taking the first steps towards a unified test where all hearsay evidence would be assessed under the principles of necessity and reliability. In R v Starr, [2000] 2 SCR 144 [Starr], the SCC reaffirmed the value of the categorical exceptions and provided a defence for their continued existence on the basis of predictability, judicial efficiency and guidance in specific factual contexts.

This shift back to the more structured approach was again confirmed by the SCC in R v Khelawon, 2006 SCC 57 [Khelawon], a judgment released at the end of last year. In this decision, the SCC set out a summary of the current state of hearsay evidence as follows:

(a) Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions to the hearsay rule remain presumptively in place.

(b) A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by the principled approach. The exception can be modified as necessary to bring it into compliance.

(c) In “rare cases”, evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case.

(d) If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity are established on a voir dire.

Thus, the starting point is once again the hearsay rule and its categorical exceptions. Like the prejudicial value and probative effects discretion, the principled approach has been relegated to a residual role in the analysis, only called into action when necessary.

In Khelawon, the SCC did take the opportunity to correct missteps taken six years earlier in the Starr decision. The offending passages from Starr consisted of comments made by Iacobucci J. regarding the type of evidence that should be used in assessing the reliability of hearsay evidence under the principled exception:

Threshold reliability is concerned not with whether the statement is true or not; that is a question of ultimate reliability. Instead, it is concerned with whether or not the circumstances surrounding the statement itself provide circumstantial guarantees of trustworthiness . . . At the stage of hearsay admissibility the trial judge should not consider the declarant’s general reputation for truthfulness, nor any prior or subsequent statements, consistent or not. These factors do not concern the circumstances of the statement itself. Similarly, I would not consider the presence of corroborating or conflicting evidence.

In the view of the current SCC, this distinction between threshold and ultimate reliability, as described by Iacobucci J. in Starr, is unhelpful in deciding what factors should be considered. Instead, they propose a more functional approach that focuses on the dangers presented by the particular hearsay statements and whether there is evidence to counteract those dangers. Thus, corroborative evidence, which could provide support for the accuracy of a hearsay statement, may be considered even though it does not go towards showing that the particular circumstances in which the statement was made safeguarded against unreliability. Certainly, in Khan, the case that started it all, the SCC used corroborating evidence of a child’s story as one of the key reasons why it determined her hearsay statements were reliable.

This makes a lot of sense to me. If I could provide compelling support from other sources for the truth of certain hearsay evidence, would this not be a good way to ensure that the evidence is reliable. In fact, such support would probably be more to the point than simply showing that there was no reason to lie in the circumstances. After all, this whole exercise is ultimately to ensure that the trier of fact has access to all relevant and accurate information.

In the future, the SCC will probably need to make some more tweaks to the rules of hearsay. For now, it appears that they have settled into a comfortable position which provides some structure and certainty while avoiding the unbending rigidity of the pre-Khan rule.