Supreme Court


Evidence

Hearsay

Principled approach

Hearsay statement of former co-accused implicating accused not meeting reliability requirement
Accused was convicted of two counts of first degree murder. Trial judge admitted hearsay statement from former co-accused T which implicated accused in murder. Court of Appeal ruled that statement should not have been admitted as reliability requirement was not met as there was nothing to provide circumstantial guarantee of trustworthiness to T’s evidence. Statements made by accused to T did not provide circumstantial guarantee of trustworthiness required to permit admission of such highly prejudicial statements from witness who had given many contradictory statements. Court of Appeal vacated convictions and ordered new trial. Crown appealed. Appeal dismissed. Court of Appeal was correct in finding that trial judge erred by admitting statement for failing to meet reliability threshold. Trial judges can rely on corroborative evidence to conclude that threshold reliability of hearsay statement is established under certain circumstances where it overcomes specific hearsay dangers presented by statement to be tendered. Evidence, when considered as whole, must show that in circumstances only likely explanation for hearsay statement was that declarant was truthful about material aspects relied upon for truth of their contents. Trier of fact could not adequately test trustworthiness of T’s statement, and there were no circumstances or corroborative evidence showing statement was inherently trustworthy so it should not have been admitted.
R. v. Bradshaw (2017), 2017 CarswellBC 1743, 2017 CarswellBC 1744, 2017 SCC 35, 2017 CSC 35, McLachlin C.J.C., Abella J., Moldaver J., Karakatsanis J., Wagner J., Côté J., and Brown J. (S.C.C.); affirmed (2015), 2015 CarswellBC 1168, 2015 BCCA 195, Neilson J.A., Bennett J.A., and Garson J.A. (B.C. C.A.).
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