Reassessing Principal Exception of Hearsay: The Supreme Court of Canada (SCC) Clarifies the Threshold of Reliability in R v Charles
- Featured in Robson Crim
- 55 minutes ago
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By: Momina Hamid & Lakshika Lakshika
Introduction
Truth in a criminal court is often delivered second-hand. Truth is mentioned through stories, vague statements, whispers, and recollections. But what happens when those second-handed truths are considered admissible without ever being tested? R v Charles compelled the courts to confront this question. The case examines whether a witness’s out-of-court statement possessed indicia of reliability and whether the evidence is considered admissible if the witness himself cannot recall the statement in question.[i] The SCC in Charles made one thing clear when it comes to hearsay, the question of reliability cannot be answered based on a feeling; it is a threshold that must be proven in the court of law.
Evidence is not information; it is an element in a court proceeding that turns allegations into convictions. It requires the trier of fact to question what is believable and what can be proven. Evidence has many forms; on one end, it can be tangible and on the other, it is significantly based on spoken words. Words that can take the shape of hearsay, often necessary for achieving justice but can also threaten the integrity of the truth-seeking process. When it comes to criminal law, R v Charles stands as a landmark case that redefines how courts apply the principal exception to the rule of hearsay. The case gave direction to the application of when and how out-of-court statements can be used as evidence. The case clarified a clear framework for the threshold of reliability that is enough to prove admissibility, maintain the integrity of the truth-seeking process, and trial fairness.
The Nature of Hearsay
Hearsay is an out-of-court statement that is admitted at a court proceeding to “prove the truth of its contents.”[ii] The general rule of hearsay implies that is presumptively inadmissible in court.[iii] However, there are categorical exceptions to the hearsay rule that are guided by necessity and reliability.[iv]
In R v Bradshaw, the Court outlined a four-part analysis framework that trial judges must assess when deciding whether corroborating evidence can be used to establish threshold reliability:[v]
(1)“identify the material aspects of the hearsay statement that are tendered for their truth;”[vi]
(2)“identify the specific hearsay dangers raised by those aspects of the statement in the particular circumstances of the case[vii]
(3)“based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement;”[viii] and
(4) “determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternative explanations such that the only remaining likely explanation for the statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement.[ix]
The Supreme Court of Canada (SCC) in Charles applied the Bradshaw framework to reaffirm that when truth is delivered in the form of hearsay, its admissibility and threshold of reliability cannot be based on instinct; it must be proven.
The Facts: When Truth is Assessed on No Recollection
R v Charles is a case involving the application of the principled exception of hearsay. In a school washroom, the accused, accompanied by K.A. and Fares (another witness), aimed a fake gun at the complainant that he felt on his hip before turning around.[x] Consequently, K.A. and Fares told the complainant that the firearm was a fake.[xi] The following day, K.A. was arrested.[xii] In the presence of his mother and after consulting with his counsel, K.A. gave a written statement to the police.[xiii] Among other things, he told the police that he had the pellet pistols in question, which the police retrieved from his house.[xiv]
The Supreme Court’s (SCC’s) Reversal
At trial, K.A. asserted that he had “no recollection of the events.”[xv] Thus, the Crown argued for the admission of the out-of-court statement into evidence, and the trial judge allowed it.[xvi] He reasoned that, considering the context of when the statement was rendered and the retrieval of pistols, there were no alternative explanations.[xvii] Since the complainant’s version of events was bolstered by the surveillance video and K.A.’s statement, it was accepted.[xviii] The majority of the Court of Appeal affirmed the trial judge’s admission of the statement.[xix] However, the SCC allowed the appeal and quashed the conviction.
The Charles Decision under a Magnifying Glass
The SCC held that the trial judge erred in principle by using the corroborating discovery of the pistols to support all aspects of the statement, especially, the accused’s degree of involvement in the assault.[xx] The Court’s reliance on the discovery of the pistol to confirm all parts of the statement violated Robert Bradshaw (the accused) core requirement of connection.[xxi] Discovery of the pistols and the accused degree of involvement are mutually exclusive: the truthfulness of one does not automatically establish the accuracy of the other. Without such a connection, the evidence simply bolsters K.A.’s credibility and does little to bridge it to the material aspect of his statement.[xxii] Notably, as an accomplice, K.A. had a strong motive to downplay his involvement and shift the responsibility to the accused and Fares.[xxiii] This casts doubt on his sincerity and reveals the very danger that the Bradshaw framework seeks to protect against.
Moreover, the Court emphasized the importance of considering alternative explanations rather than accepting the Crown’s inferences at face value. For instance, K.A.’s mother’s presence when he gave the statement could have influenced him to lie instead of telling the truth.[xxiv] Likewise, the close proximity between the event and the statement may reflect the freshness of his memory and not necessarily his sincerity.[xxv] Notably, since the Court was unaware of the content of K.A.’s discussion with his counsel, mere presence of the counsel alone could not render his statement implicating the accused admissible.[xxvi] As for the Crown’s assertion that there were no leading questions or inconsistent statements, it can be argued that the absence of a negative does not provide a positive guarantee.[xxvii]
Lastly, there were no procedural steps taken to guard against the dangers of hearsay. Specifically, the absence of a recording, a statement under oath, and a warning about the consequences of dishonesty all indicate that a cross-examination would have revealed crucial aspects of the case.[xxviii] Accordingly, the SCC reasoned that K.A.’s statement did not meet the threshold of reliability when weighed against the Bradshaw framework.[xxix] Since it lacked both procedural and substantive reliability, the SCC quashed the accused’s conviction and ordered a new trial.[xxx]
Reclaiming Fairness - The Absence of a Negative does not Provide a Positive Guarantee
R v Charles is about more than an evidentiary error; it is about reinforcing the principle of constitutional fairness and the rule of law. The SCC reaffirmed that in criminal courts, the threshold of reliability serves a constitutional function; any significant errors in testing hearsay evidence can threaten the accused’s right to a fair trial. The Bradshaw framework is a mechanism to achieve constitutional function. It is a legal safeguard with distinct requirements, and not a discretionary test that can be assessed based on feelings. Reliability cannot be established through the absence of contradiction, hesitation, or inconsistency. Rather, it must be established through the law of evidence. Consequently, the absence of a negative does not provide a positive guarantee.
Exceptions in law are not merely convenient loopholes exploited for personal legal victories; they are mechanisms to provide furtherance to justice. Further, “[i]n the absence of a connection between the corroborative evidence and the aspect sought to be proved, the evidence is quite simply of no assistance in determining whether that specific aspect is true or accurate; it merely corroborates the declarant’s credibility, the accused’s guilt or one party’s theory of the case, which is not sufficient.”[xxxi] When evidentiary gatekeepers make errors and use corroboration as a substitute for testing, they risk trial fairness and the integrity of the truth-seeking process. The threshold of reliability is not a technicality; it is a constitutional safeguard.
Unanswered Questions
While the decision marks an important articulation of the Bradshaw framework, it left certain questions unanswered. Although it reinforced the importance of legal precision, it also exposed the challenges of practical adjudication. The SCC missed an opportunity to provide guidance on judicial review at all levels of the legal system. Although there is some deference owed to the trial judge as a fact-finder, the SCC refrained from clarifying how judges should navigate the space between exercising reasonable flexibility and substantive legal errors. In the absence of clear parameters, the SCC risks creating the very problem that it sought to address in Charles.
At trial, the judge assessed the Bradshaw framework with flexibility, whereas the SCC used a stricter approach for assessing the threshold of reliability. The SCC’s ruling presented an opportunity to close the gap between legal theory and judicial practice. Ultimately, the SCC bolsters the legal precision of the hearsay rule. However, its fresh application of the facts underscores the need for clearer guidance. Charles remains the case that refined hearsay reliability because it reinforced precision. However, it also reveals the need for clearer judicial parameters.
Endnotes:
[i] R v Charles, 2024 SCC 29 [Charles], online: https://canlii.ca/t/k6zwh
[ii] Paciocco et al, The Law of Evidence, 8th ed (Toronto: Irwin Law, 2020) at 135.
[iii] Brandon Trask, Evidence Class 2, Lecture PowerPoint (University of Manitoba, Faculty of Law, 2024) at 39.
[iv] Ibid.
[v] R v Bradshaw, 2017 SCC 35 [Bradshaw], online: https://canlii.ca/t/h4jxt
[vi] Bradshaw, supra note v at para 57; Charles, supra note i at para 57.
[vii] Ibid.
[viii] Ibid.
[ix] Ibid.
[x] Charles, supra note 1 at para 8.
[xi] Ibid.
[xii] Ibid at para 9.
[xiii] Ibid at paras 9, 10.
[xiv] Ibid at para 12.
[xv] Ibid at para 13.
[xvi] Ibid at paras 13, 15.
[xvii] Ibid at para 22.
[xviii] Ibid at para 25.
[xix] Ibid at para 33.
[xx] Ibid at para 64.
[xxi] Ibid at paras 61, 62.
[xxii] Ibid at para 56.
[xxiii] Ibid at para 68.
[xxiv] Ibid at para 72.
[xxv] Ibid.
[xxvi] Ibid at para 73.
[xxvii] Ibid at para 71.
[xxviii] Ibid at para 74.
[xxix] Ibid at para 75.
[xxx] Ibid at para 80.
[xxxi] Ibid at para 55.
