Yesterday, the Supreme Court of Canada released their decision of R. v. Bradshaw and once again making it clear that hearsay, is presumptively inadmissible in Canadian Courts.
In strengthening the test for hearsay, the Supreme Court’s ruling reminds lower Courts that hearsay is inherently unreliable and a form of evidence carries with it great danger. Yes, there are exceptions, and in many circumstances hearsay is permissible. However, such exceptions must be made under close scrutiny, with an aim towards reliability, and only when it is necessary to do so.
This case comes as the pinnacle to a long line of cases where Canadian courts have struggled to define what is permissible, and impermissible for trier of facts (judges or juries) to consider in trials.
In the simplest terms, hearsay is defined in law as “an out?of?court statement is adduced to prove the truth of its contents”.
So, imagine the statement
“Mike has a new pair of Yeezys!”
If that fact is coming from George who saw Mike at the gym wearing them, that would be direct testimony and therefore not hearsay.
However, if Marie tells the story and she got her information from George, that would be hearsay in the common usage sense.
Let’s get legal.
Now imagine everyone is at Court:
Mike can testify about his Yeezys.
George can testify about seeing Mike wearing them.
But, generally speaking, Marie cannot testify about the Yeezys because she only heard it from George.
Over the years, hearsay under Canadian law has defined, refined, enhanced, and wrote extensively on the topic of hearsay which now brings us to yesterday’s Supreme Court of Canada’s decision of R. v. Bradshaw. Under present Canadian law, Marie might be able to testify about Mike’s Yeezys as well, but only if its established that the out-of-court statement “Mike has Yeezys” is proven reliable, and its necessary to do so because the original source, etc. is unavailable (maybe George has left the jurisdiction).
So, what does it mean to have a statement admissible on principled exception? When do the Courts allow hearsay to be permitted?
Strap on your Yeezys, because it’s about to get complicated:
This now brings us to the 2017 case of R. v. Bradshaw.
In March of 2009, a woman and man were shot dead five days apart. After an undercover, RCMP “Mr. Big” operation, Roy Thielan confessed to the crime in its entirety. However, Mr. Thielan then changed his story to undercover investigators in that he was only responsible for one of the deaths, and Nicholas Bradshaw was responsible for the other.
In addition to this confession, and follow up confession, Thielan reenacted the crime on video going though how the killings took place.
At trial, Thielan refused to testify and thus forcing the Crown to rely on previous statements and the reenactment video of Thielan. Despite the obvious unsavoury character of Thielan, and his motivations to lie, the trial judge permitted his prior statements and video into evidence for a jury to weigh.
In reaching this conclusion of admissibility on a principled basis, and the factors set out in Khelawon in doing so, the judge relied upon what she considered corroborative evidence that included:
- forensic evidence that corroborated Thielen’s detailed description of the murders (para. 45);
- Thielen’s accurate description of the weather on the nights of the murders (para. 46);
- evidence of a conversation between Bontkes and Motola on the night Bontkes died (para. 47) (Motola was a third accomplice in Bontkes’s death and pled guilty to manslaughter in separate proceedings);
- evidence that Bradshaw may have been present when Motola and Thielen discussed their plan to kill Bontkes (para. 52)
- call records between one of the murder victims and Bradshaw on the night of one of the murders, and between Thielen and Bradshaw on the night of the other murder (para. 51); and,
- Bradshaw’s admissions at the Best Western and Bothwell Park (paras. 48-49).
Bradshaw was convicted of murder.
On appeal, the British Columbia Court of Appeal disagreed with the trial judge’s admissibility of T’s statement and held that the factors she relied upon did not meet “corroboration” as required for sufficient reliability.
The Supreme Court of Canada, in a 5-2 split, agreed with the Court of Appeal.
Justice Karakastanis, writing for the majority, provided an extensive review of existing case law on hearsay. Most importantly, she and also provided a highly analytical review with supporting authorities on what “corroboration” means when assessing in the hearsay context. (paras 33-58). Highlights include:
- There is not a uniform approach to “corroboration” at the admissibility stage and ultimate weight stage. To do otherwise would defeat the purpose of the admissibility exercise. (para 34-37)
- Khelawon did not broaden the scope of the admissibility requirement in using corroborative evidence, it merely focused the principles behind it. (para 38)
- The distinction between threshold and ultimate reliability is a critical aspect of hearsay evidence, and its admissibility. Therefore, the two concepts cannot and must not be conflated. It is a qualitative difference, not one of degree (paras 39, 41) and the Court must remained focused on that key aspect (para 42)
- Corroborative evidence can be used as much to reject hearsay evidence as it does to admit it. (para 40)
- Corroborative evidence cannot be used as a means to try a case vis a vis hearsay evidence.
- Equivocal evidence is to be considered what what it is, and not corroborative as corroboration implies a single explanation or buttressing, not many.
In summarizing how to assess “corroboration”, Justice Karakastanis noted four keys aspects in the analysis:
(1) identify the material aspects of the hearsay statement that are tendered for their truth;
(2) identify the specific hearsay dangers raised by those aspects of statement in the particular circumstances of the case;
(3) based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement; 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.
The case of Bradshaw may serve as the most important case on hearsay in Canadian law for decades to come. It particular, it makes it clear that the inherent unreliability of hearsay requires Courts to be very cautious, even at the stage of admission, not weight.
Another important competent that comes from this case is how it may blend into other aspect of law.
In particularly, similar fact evidence as well as search and seizure law (warrants) relies on the principles of “corroboration”. The detailed analysis provided by the Court in this instance will serve to benefit those seeking to undermine claims of “corroborative” evidence in these aspects as well by the concise and highly focused analysis in this judgment.
As riffed about on Twitter earlier today:
Insofar as George’s Yeezys, you will have to ask him…