R. v. Blackman: The Principled Approach to Hearsay Revisited

One week after handing down R. v. Devine, 2008 SCC 36, the Supreme Court released its judgment in R. v. Blackman 2008 SCC 37. In both cases, the court unanimously allowed hearsay evidence under the principled exception to hearsay rule. Taken in tandem, Devine (which was canvassed on this blog by Christopher Bird, here and Blackman clarify and modestly expand the principled exception to hearsay rule.

Facts and Procedural History

Leucherin Blackman was charged with the first degree murder of George Ellison, who was fatally shot outside an after-hours nightclub in April 2001. The evidence led at trial suggests that Blackman and Ellison were not strangers. In fact, with an aim to establishing motive, the Crown argued at trial that Mr. Blackman shot Mr. Ellison in retaliation for a July 2000 altercation between the two men, during which Mr. Ellison had stabbed Mr. Blackman. The Crown also alleged that Mr. Blackman had unsuccessfully attempted to kill Mr. Ellison outside of a strip club in February 2001.

To substantiate its allegations, the Crown introduced into evidence statements made by Mr. Ellison to his mother in the weeks prior to his shooting in which he confided that he had stabbed a man in July 2000. Mr. Ellison also allegedly told his mother that he had been shot outside a strip club in February 2001, by the person he had stabbed. Following a voire dire on the admissibility of the above statements, the trial judge admitted this evidence.

At trial, Mr. Blackman was convicted of first degree murder. He appealed to the Ontario Court of Appeal, which upheld the decision of the trial judge. However, the court divided on the issue of whether or not the impugned hearsay evidence was admissible under the principled exception to hearsay rule. Writing for the majority, Cronk J.A. endorsed the lower court’s use of of a principled approach to hearsay to justify admitting the statements made by Mr. Ellison to his mother. Writing in dissent, however, Simmons J.A. found that the trial judge had erred in relying on Mr. Ellison’s apparent lack of a motive to lie, and in relying too much on the fact that the impugned statements were against Mr. Ellison’s interest and therefore less likely to be fabricated. Simmons J.A. also took issue with the notion that concerns about the truthfulness of Mr. Ellison’s statements were sufficiently ameliorated by the fact that the defence had had the opportunity to impeach the credibility of Mr. Ellison’s mother by way of cross-examination.

Drawing largely on the Simmons J.A.’s dissent, Mr. Blackman sought leave to appeal to the Supreme Court.

The Supreme Court Weighs In

Writing for a unanimous court, (as she did in Devine), Charron J. methodically evaluated the admissibility of the statements made by Mr. Ellison to his mother, beginning with a general discussion of basic evidentiary requirements, then moving on to consider the applicability of the principled exception to hearsay rule. In this post, I will focus exclusively on Charron J.’s discussion of the latter.

Hearsay evidence is presumptively inadmissible. Accordingly, the applicability of the principled exception to hearsay rule in Blackman hinged on whether or not the Crown had discharged its burden of establishing on a balance of probabilities that the impugned statements met the twin criteria for the principled exception to the hearsay rule, namely necessity and reliability.

Establishing the presence of necessity was relatively straightforward; having died, Mr. Ellison could not testify himself, and accordingly hearsay evidence was the only manner of adducing his statements.

Charron J. identified two possible ways of demonstrating reliability, (which, she emphasized, were not mutually exclusive): (1) “by showing that sufficient trust can be put in the truth and accuracy of the statements because of the way in which they came about,” and, (2) “by showing that in the circumstances the ultimate trier of fact will be in a position to sufficiently assess their worth.”

Drawing on Simmons J.A.’s dissent, Mr. Blackman argued that the trial judge’s reference during the voir dire to the fact that there was nothing “inherently unreliable” about the statements Mr. Ellison made to his mother, constituted a reverse onus with respect to the establishment of the admissibility of hearsay evidence. However, Charron J. rejected this argument on the basis that a contextual reading of his judgment disclosed a sensitivity to the appropriate burden for admitting hearsay evidence.

Mr. Blackman also argued, relying on the Ontario Court of Appeal ruling in R. v. Czibulka (2004), 189 C.C.C. (3d) 199, that the trial judge had erred by inferring from the absence of any evidence to the contrary, that Mr. Ellison had no motive to fabricate the statements he had made to his mother. In Czibulka, the court overturned the accused’s conviction on the grounds that in the course of determining whether or not the impugned hearsay evidence met the reliability requirement of the principled approach to hearsay, the trial judge had failed to distinguish between an absence of evidence of motive on the one hand, and evidence of an absence of motive on the other.

Here too, Charron J. relied on contextual considerations to discredit Mr. Blackman’s reliance on Czibulka, positing that “the distinction between an “absence of evidence” and “evidence of an absence of motive to fabricate”, if taken out of context, can be rather elusive.” In Czibulka, there was “little or no evidence” in front of the court relating to the circumstances in which the impugned hearsay evidence had been communicated. In fact, the Ontario Court of Appeal found that on the issue of motive, the available evidence tended to support the opposing conclusion. Moreover, the trial judge’s decision in Czibulka “essentially turned on the finding that the deceased had no motive to lie”.

Bearing these factors in mind, Charron J. found that whereas “in Czibulka the question of motive, in the circumstances of that case, was a very significant factor … in other cases, motive may not feature so prominently.” Contrasting Czibulka with the present cases, she observed:

Here, the majority of the Court of Appeal concluded that, unlike in Czibulka, there was circumstantial evidence to support the inference that Mr. Ellison had no motive to lie to [his mother]. I agree with the majority’s conclusion that, the trial judge considered the relevant factors in determining whether Mr. Ellison had a motive to fabricate, including the nature of the relationship between Mr. Ellison and his mother and the context in which the statements were made. As the trial judge put it, ‘[i]f he wanted to mislead her the easiest thing would be to say it was a stranger who shot him, thereby minimizing his own blameworthiness from the stabbing.’ … In my respectful view, Simmons J.A. placed too much emphasis on the distinction drawn in Czibulka, a distinction which has no application on the facts here.

Charron J. agreed with Mr. Blackman, as well as Simmons J.A. that the trial judge (and the majority opinion in the Ontario Court of Appeal) had mischaracterized the impugned statements as “against Mr. Ellison’s interest.” However, she rejected the claim that, in the present case, the “mischaracterization of this factor had any significant bearing on the trial judge’s ruling.”

Mr. Blackman also argued that the presence of inconsistencies in the testimony Mr. Ellison’s mother militated toward finding the impugned hearsay evidence inadmissible. Drawing on R. v. Humaid (2006), 208 C.C.C. (3d) 43 (Ont. C.A.), Charron J. rejected this argument, finding that although there were inconsistencies in Mr. Ellison’s mother’s testimony, in light of her availability for cross examination, such inconsistencies “were matters properly left to the ultimate trier of fact, as the Court of Appeal did in Humaid.

Charron J. was quick to qualify the above finding, noting that “in cases where the recipient of the out-of-court statement is not available for cross-examination, his or her credibility and truthfulness may play an important role in assessing the question of threshold admissibility.” Moreover, Charron J. asserted that a trial judge has a “residual discretion to exclude evidence where its potential probative value is exceeded by the potential prejudicial effect of that evidence.” In the case at bar, however, the trial judge had not exercized such residual discretion.

Having dismissed Mr. Blackman’s arguments on appeal, Charron J. upheld the trial judge’s application of the principled exception to hearsay rule. She also took the opportunity to comment on state of the law on the legitimacy of the use of corroborating or conflicting evidence on the admissibility voir dire in the aftermath of the recent Supreme Court decision in R. v. Khelawon 2006 2 S.C.R. 787 (also authored by Charron J). In particular, she cautioned trial judges about the limited role corroborating evidence can play in voir dire determinations of admissibility. “The admissibility voir dire she explained, “must remain focused on the hearsay evidence in question” rather then become a “full trial on the merits.”

The Scope of Blackman

Like Devine, Blackman is significant for its clarification of a discrete area of law relating to the principled approach to hearsay. However, for two reasons, Blackman is also likely to occasion a slight expansion of the principled exception to the rule of hearsay. First, by limiting the applicability of Czibulka, Charron J. effectively diminished the significance of an absence of motive as a factor that can be used to negate the admissibility of hearsay evidence. Second, Blackman stands for the proposition that when cross examination of hearsay evidence is on the table, the evaluation of inconsistencies in the testimony of the source of the impugned hearsay evidence is a matter best left for the ultimate trier of fact. Put differently, Blackman effectively precludes the a priori rejection of hearsay evidence on the grounds that there are inconsistencies in the testimony of the witness who puts forth the evidence.