The New, New Approach to the Threshold Reliability Hearsay Test?

By: Jordan Casey

The admissibility of hearsay statements is a heavily litigated area of criminal law, and yet, it is one of the least understood evidentiary areas. The recent case of R v Bradshaw from the Supreme Court of Canada does little to assist lawyers and self-represented accused in navigating the murky waters known as “hearsay.” In fact, it adds an entirely new level of complexity. That being said, this decision is of great importance to advancing the administration of justice and truth-seeking function of the court.

A hearsay statement is an out-of-court statement tendered for the truth of its contents. The paramount difficulty with such statements is the absence of the opportunity for cross-examination of the declarant at the time the statement was made. Thus, hearsay statements have the power to severely undermine the integrity of the truth-seeking function of the court and trial fairness. As a result, hearsay statements are presumptively inadmissible. Despite that presumption, hearsay statements can be admitted where they fulfill both the necessity and reliability thresholds of the principled exception.

In that case, Bradshaw was convicted at trial of two counts of first-degree murder following the completion of a “Mr. Big” operation that had been conducted on Thielen. Thielen had pled guilty prior to Bradshaw’s trial and Thielen had refused to testify against Bradshaw. During the Mr. Big operation, Thielen had provided a re-enactment of the murders for the undercover police, and that re-enactment implicated Bradshaw in the murders. It was this hearsay re-enactment that the Crown attempted to elicit at trial, and was ultimately successful. In assessing the threshold reliability of the re-enactment, the trial judge relied on the existence of corroborative evidence as a significant factor and ultimately concluded that the re-enactment was admissible. (A full list of the corroborative evidence can be found at para 61.)

The majority concluded that the trial judge had erred in admitting the re-enactment since the corroborative evidence did little to demonstrate that the re-enactment was sufficiently reliable to overcome the dangers of admitting a hearsay statement. Taking the opposite position, the dissent concluded that the trial judge had not erred in admitting the re-enactment as the corroborative evidence was capable of satisfying threshold reliability.

Two concerns have been expressed with respect to the majority’s decision. First, that the corroborative evidence in this case was insufficient to satisfy the threshold reliability test. As commented on by Moldaver J., writing for the dissent, there were recordings made surreptitiously of Bradshaw and Thielen discussing the murders that severely implicated Bradshaw. Had Bradshaw or Thielen known that these conversations were being recorded, this criticism of the majority decision would likely evaporate. But since these recordings were done without the involvement of the undercover police in eliciting the statements from Bradshaw or Thielen, which is the case with Mr. Big and undercover operations, and without either knowing that they were being recorded, this corroborative evidence, it is argued, is exceptionally relevant to demonstrating the truthfulness of the re-enactment.

Second, the test outlined by the majority essentially creates a new restrictive test for addressing corroborative evidence within the already established threshold reliability hearsay test. The majority stated as follows:

To determine whether corroborative evidence is of assistance in the substantive reliability inquiry, a trial judge should:
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.
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.

This test goes beyond simply determining whether or not certain pieces of evidence constitute corroborative evidence capable of assisting a trial of fact in the threshold reliability test. Particularly, part 3 of the above test asks the trier of fact to speculate about explanations that undermine the truthfulness of the corroborative evidence. The word “speculate” appears to casts an extraordinarily wide net, essentially making it impossible for corroborative evidence to ever be used to support threshold reliability. The majority was correct in stating that some of the corroborative evidence considered by the trial judge was irrelevant, particularly the weather on the nights of the murders. However, if surreptitiously recorded discussions between two individuals that implicate both in the murders, without the presence of undercover officers to elicit or prompt the discussions, then what evidence would the majority consider corroborative? It appears that the majority has set a nearly impossible standard with the new test for corroborative evidence.

While many people will not agree with the majority on this particular set of facts, nor with the requirement of considering “speculative” explanations, it is clear that now, the requirement of corroborative evidence must be capable of overcoming the dangers of hearsay for a hearsay statement to be admissible. The judicial aversion to the admission of hearsay statements generally encompasses cases where the declarant is unable to be cross-examined at trial, and where the evidence provided by that declarant has never been cross-examined in a prior proceeding. The reasoning for that, is because such evidence is left entirely untested, and if admitted, has the ability to render a finding of guilt. Furthermore, the admission of such evidence undermines the entire purpose of a trial: to test the evidence. The strict test outlined by the majority most definitely will assist in preventing unfair trials due to the admission of hearsay evidence based on weak corroborative evidence.

Although this case add considerable complexity to hearsay evidence, it ultimately demonstrates the court’s desire to ensure trial fairness. Furthermore, it swings the pendulum which is the law of hearsay admission back more closely to the pre-Khelawon days in which corroborative could not assist in admitting the hearsay statement. Going forward, defence counsel would be well-advised to advise the court of any alternative and speculative explanations for the statement, other than its truth, in order to prevent the admission of damaging, untestable, hearsay evidence.