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SCC ruling offers guidance on hearsay evidence

recent decision by the Supreme Court of Canada (SCC) that re-elevates the standards by which hearsay is admissible will have a significant impact on criminal cases and provides guidance to the lower courts, says Brampton criminal lawyer Michael Moon.

It  was becoming far too easy for the Crown to admit hearsay as evidence, which — without the chance for cross-examination — wasn’t giving the defence a fair shot, says Moon, founder and director of the Brampton criminal and constitutional firm Moon Rozier L.P.C.

“The Supreme Court is saying that only in exceptional circumstances should hearsay be admissible in a trial,” he tells AdvocateDaily.com.

“The standards for admissibility had degraded to the point where almost any hearsay statement that the Crown tendered was accepted. The doctrines behind the principled approach had been forgotten, and hopefully, this case will re-animate them.”

Hearsay, any out-of-court statement used to tender the truth or its contents, was generally inadmissible in Canadian courts until a landmark ruling in 1990. In that case, a three-year-old girl told her mother that her doctor molested her, and her statement was allowed as evidence since it was deemed necessary, reliable and was corroborated by proof of semen on her clothing.

Since then, it has been up to the lower courts to decide when hearsay is admissible, and over time the strict standards have eroded, Moon says. It was supposed to be a rare occasion or set of circumstances — there had to be a video, it had to be under oath, there had to be cautions, and it had to be voluntary, he says.

“But just as gravity works on everything else, it also works on the legal profession and pulls all the standards down over time,” Moon says.

“So all these strict rules just degraded over time and it became really quite easy for the Crown to get hearsay in.”

An SCC decision in another recent case underscores the exceptional nature of what’s admissible, Moon says. In a 5-2 decision, the SCC found the trial judge had erred in allowing a video re-enactment by a double-murderer to be used to implicate another man in those same killings.

“By only admitting necessary and sufficiently reliable hearsay, the trial judge acts as an evidentiary gatekeeper. She protects trial fairness and the integrity of the truth-seeking process,” reads the decision. “However, hearsay may exceptionally be admitted into evidence under the principled exception when it meets the criteria of necessity and threshold reliability.”

Further, the high court is now saying that substantive reliability — whether the hearsay is trustworthy and would be likely to hold up under cross-examination — should not be bolstered by corroborative evidence, Moon says.

“That just blurs the principles and dims the analysis of the hearsay,” he says.

While the decision is heartening, it’s also bittersweet, Moon says.

“There are a number of cases where I wish I could take this case, go back in time and relitigate,” he says.

“But we can’t go back in time. We can only hope that this guidance provided by the Supreme Court trickles down and is applied by the lower courts.”

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