This week’s top three summaries: R v Charles, 2024 SCC 29: #principled exception, R v R.A., 2024 ONCA 696: #spontaneous utterance, and R v DPT, 2024 ABCA 299: cross-count #evidence
R v Charles, 2024 SCC 29
[September 25, 2024] The Principled Exception to Hearsay [Majority Reasons by Moreau J. with Karakatsanis, Martin, and Jamal JJ. concurring]
AUTHOR’S NOTE by K. SITAR: This appeal turned on the admissibility of an out-of-court written statement provided by a Crown witness, KA. When called to testify, KA claimed to have no recollection of the events in question. Concluding the trial judge erred in his principled exception analysis, the Majority offers further clarity on two issues central to any Khelawon/Bradshaw analysis : (i) what is capable of constituting corroborative evidence; and (ii) that, on appellate review of a threshold reliability determination, it is an error to consider evidence led outside the voir dire. In addition, Moreau J’s analysis offers guidance in assessing the threshold reliability of statements made by an alleged accomplice.
I. Overview
[1] This case concerns the admission into evidence, during the appellant’s trial, of an out-of-court statement in writing of a Crown witness, K.A., who claimed on being questioned by the Crown that he had no recollection of the events forming the subject matter of the charges against the appellant. The appellant submits that the trial judge erred in determining that the out-of-court statement had the indicia of reliability required by R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, and R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, for admission into evidence. A majority of the Quebec Court of Appeal upheld the trial judge’s decision to admit the statement into evidence. The dissenting judge would have excluded the statement and ordered a new trial.
[2] The central issue to be determined is whether the trial judge erred in finding that the witness’s out-of-court statement had the indicia of reliability required according to the principles set out in our jurisprudence. This determination affords us an opportunity to reaffirm the principles laid down in Bradshaw.
[3] I agree with the dissenting Court of Appeal judge that the trial judge erred in admitting the witness’s statement in writing into evidence at trial. The results of the search subsequently conducted at the witness’s residence do not meet the Bradshaw criteria for corroborative evidence. Because the Crown sought to use the witness’s statement to establish the appellant’s role in the events, it was required to show that the search results confirmed that aspect of the statement. As for the circumstances surrounding the statement, they do not support a finding that threshold reliability is established.
[4] Moreover, the majority of the Court of Appeal should not have relied on the complainant’s testimony, tendered outside of the voir dire, to establish the threshold reliability of K.A.’s statement. On appeal, the appropriate mechanism for considering the complainant’s testimony is the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46. However, that provision cannot be applied in this case. It is therefore unnecessary to decide the discrete question of the self-contained nature of the voir dire at the trial stage, especially since the trial judge expressly declined to consider evidence not tendered in the voir dire, by agreement of the parties.
[5] I would accordingly allow the appeal, quash the convictions and order a new trial.
II. Facts
[6] The appellant was charged with assault with a weapon, using an imitation firearm in the commission of an assault, and uttering threats.
[7] The circumstances at the heart of this case unfolded on February 24, 2016, at the school attended at the time by the appellant, K.A. and the complainant. At the appellant’s trial before a judge alone, the Crown called K.A., the complainant, a police officer and a rehabilitation counsellor who worked at the school. The appellant testified in his own defence.
[8] The complainant testified that he had asked the appellant to stop bothering his girlfriend. The appellant initially became angry but subsequently calmed down. Later, the complainant entered a washroom at the school and, while washing his hands, he felt something on his hip. When he turned around, he saw that it was a pistol being held by the appellant. Two other students, K.A. and a person named Fares, were also present. When asked by the complainant whether the pistol [TRANSLATION] “was a real one”, the appellant replied: “Do you want to see if it’s a real one? I think I have a bullet left in it” (A.R., vol. II, at pp. 305-6). K.A. and Fares later caught up with the complainant and told him that the firearm was a fake.
[9] The day after the events, K.A. was arrested and taken into custody for possession of a firearm for a dangerous purpose, possession of an imitation firearm, carrying a concealed firearm, uttering death threats and assault with a weapon. K.A. was informed of his rights and consulted counsel.
[10] Accompanied by his mother, K.A. was questioned by the police investigators for about an hour and provided a statement in writing. In his testimony at the voir dire on the admissibility of K.A.’s statement, the police investigator who had taken notes during the interview could not guarantee that he had taken down all of the questions asked or, for that matter, everything said during the interview. No recording (video or audio) of the interview was made, nor was the statement made under oath. The police investigators did not warn K.A. of the possible consequences of giving a false statement. [Emphasis by PJM]
[11] In his written statement, K.A. admitted that he was in possession of two pellet pistols belonging to Fares. According to K.A., while he was with Fares and the appellant in the washroom, he was asked to give one of the pistols to the appellant. K.A. was not aware of the issues between the appellant and the complainant. The appellant pointed the weapon at the complainant while uttering threats against him, then tried to wipe his prints off the weapon before returning it to K.A. A short time later, K.A. and Fares found the complainant and told him that the appellant was not serious and was only joking.
[12] K.A.’s statement also described the pistols and where they were located in his residence, namely, in a drawer of his dresser. The police then conducted a search and recovered the pistols in the location indicated by K.A. K.A. subsequently pleaded guilty to a charge of carrying a weapon for a purpose dangerous to the public peace.
[13] When called by the Crown as a witness at the appellant’s trial, K.A. claimed to have no recollection of the events. The Crown then requested a voir dire, seeking to admit into evidence the recording of K.A.’s guilty plea before the Youth Division of the Court of Québec….
….When the voir dire resumed, the Crown advised the trial judge of its intention to adduce into evidence as well the out-of-court statement given by K.A. to the police investigators on February 25, 2016.
III. Decisions of the Courts Below
A. Court of Québec (Judge Dupras)
(1) Voir Dire Ruling
[18] At the outset of his reasons, the trial judge noted that the evidence adduced at the trial had not been tendered in the voir dire, except for the evidence concerning K.A.’s demeanour at the trial. The trial judge relied on the Ontario Court of Appeal’s decision in R. v. Conway (1997), 36 O.R. (3d) 579, as well as similar remarks made in Bradshaw, in determining that he had to confine himself to the evidence tendered during the voir dire.
[19] The trial judge had no difficulty in finding that necessity — the first criterion for the admissibility of hearsay — was met given that K.A. claimed during the trial to have no recollection of the events.
[20] He also found that the criterion of reliability was met, highlighting the following circumstances:
K.A. was read his rights from a form used specifically for minors.
K.A.’s mother was present at all times while he was being questioned and while the statement was being written, and her son’s rights were explained to her.
K.A. consulted counsel before giving his statement.
K.A. admitted, without hesitation, his responsibility in relation to the events.
The police investigators’ questions were not leading.
There was no evidence of inconsistent statements
K.A. did not have a criminal record and there was no evidence as to moral character, criminal lifestyle, past dishonesty or interest in the outcome of the trial.
K.A. provided his statement the day after the events occurred.
K.A. did not attempt to diminish his criminal responsibility, as he even made assertions that lessened the appellant’s responsibility. This distinguished the situation at hand from those in which an accomplice attempts to evade responsibility by blaming someone else.
There was an intrinsic structure to what was said, and K.A. seemed to adhere to an inherent logic, particularly in minimizing the intent that might be inferred from the appellant’s conduct.
[21] The trial judge also considered the seizure of pistols at K.A.’s residence to be corroborative evidence. He noted that those items had been seized by consent, which demonstrated K.A.’s willingness to cooperate fully with the authorities, at the risk of incriminating himself. [Emphasis by PJM]
[22] The trial judge identified the honesty of the declarant as the specific hearsay danger raised. However, given the circumstances and the corroborative evidence, he found that the only likely explanation for the statement was its truthfulness as to its material aspects.
(2) Decision as to Guilt
[25] Relying on Exhibit P-6 and the complainant’s testimony, as well as the portions of the appellant’s testimony that confirmed the complainant’s testimony, the trial judge found that the Crown had established the appellant’s guilt beyond a reasonable doubt. The probative value of certain passages of K.A.’s statement was compromised, but other passages remained useful. In particular, the statement had been proven truthful with respect to the location of the weapon or weapons. With regard to the [TRANSLATION] “crux of this case, the criminal use of the weapon by the accused” the trial judge noted that K.A.’s statement generally supported the complainant’s account (para. 68). When K.A.’s comments were properly situated in the context of the evidence as a whole, they [TRANSLATION] “compel[led] the recognition of [their] definite probative value” (para. 69). The trial judge accepted the complainant’s version of events, which he considered to be supported for the most part by Exhibit P-6 and K.A.’s statement.
B. Quebec Court of Appeal, 2022 QCCA 1013, 82 C.R. (7th) 373
(1) Bachand J.A., Dissenting
[29] However, there was no connection between the search results and the issue of whether the appellant had handled the weapon and used it to threaten the complainant. Therefore, if the Crown adduced the statement to prove that fact, the search results could not be used to establish the statement’s admissibility. This remained true even if the Crown also wished to adduce the statement to show that a weapon had been used. The search results could then be used to establish the reliability of the statement in relation to this second aspect, but not in relation to the first.
V. Analysis
B. General Principles Concerning the Admissibility of Hearsay Evidence
[43] Hearsay evidence is presumptively inadmissible (see, e.g., Bradshaw, at paras. 1 and 21). Its presumptive inadmissibility is due to the fact that it is often difficult to assess the truth of a statement made outside the courtroom. In Bradshaw, Karakatsanis J. explained that, generally, “hearsay is not taken under oath, the trier of fact cannot observe the declarant’s demeanor as she makes the statement, and hearsay is not tested through cross-examination” (para. 20). However, “[t]he truth-seeking process of a trial is predicated on the presentation of evidence in court” (Bradshaw, at para. 19), and “our adversary system is based on the assumption that sources of untrustworthiness or inaccuracy can best be brought to light under the test of cross-examination” (Khelawon, at para. 48). It is “mainly because of the inability to put hearsay evidence to that test” that such evidence is presumptively inadmissible (Khelawon, at para. 48; see also Bradshaw, at para. 1).
[44] The admission of hearsay may therefore “compromise trial fairness and the trial’s truth-seeking process” (Bradshaw, at para. 20). It is possible that the statement has been “inaccurately recorded, and the trier of fact cannot easily investigate the declarant’s perception, memory, narration, or sincerity” (Bradshaw, at para. 20, citing Khelawon, at para. 2). There is thus a risk that such evidence “may be afforded more weight than it deserves” (Bradshaw, at para. 21, quoting Khelawon, at para. 35).
[45] That being said, in some circumstances, hearsay evidence “presents minimal dangers and its exclusion, rather than its admission, would impede accurate fact finding” (Khelawon, at para. 2 (emphasis in original), quoted in Bradshaw, at para. 22). Over time, the case law therefore developed categorical exceptions to the exclusionary rule and, ultimately, a more flexible approach. Under the principled exception, “hearsay can exceptionally be admitted into evidence when the party tendering it demonstrates that the twin criteria of necessity and threshold reliability are met on a balance of probabilities” (Bradshaw, at para. 23, citing Khelawon, at para. 47). To establish the threshold reliability of a statement, a party may demonstrate its procedural or substantive reliability.
[46] Procedural reliability is established when there are adequate substitutes for testing the truth and accuracy of the statement “given that the declarant has not ‘state[d] the evidence in court, under oath, and under the scrutiny of contemporaneous cross-examination’” (Bradshaw, at para. 28, quoting Khelawon, at para. 63). Triers of fact must have “a satisfactory basis . . . to rationally evaluate the truth and accuracy of the hearsay statement” (Bradshaw, at para. 28). Substitutes for the traditional safeguards “include a video recording of the statement, the presence of an oath, and a warning about the consequences of lying” (Bradshaw, at para. 28, citing R. v. B.(K.G.), [1993] 1 S.C.R. 740, at pp. 795-96). Some form of cross-examination of the declarant, such as preliminary inquiry testimony, is usually required (Bradshaw, at para. 28).
[47] Substantive reliability is established when the statement is inherently trustworthy. To determine whether this is the case, trial judges may consider the circumstances in which the statement was made as well as the evidence that corroborates or conflicts with it. The standard is a high one (Bradshaw, at para. 31). That being said, it is not necessary for reliability to be established with absolute certainty. Rather, judges must be satisfied that the statement is “so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process” (Khelawon, at para. 49, quoted in Bradshaw, at para. 31). In other words, the evidence must be “sufficiently reliable to overcome the dangers arising from the difficulty of testing it” (Bradshaw, at para. 26, quoting Khelawon, at para. 49). As Karakatsanis J. explained in Bradshaw, at para. 31:
Substantive reliability is established when the statement “is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken” ([R. v. Smith, [1992] 2 S.C.R. 915], at p. 933); “under such circumstances that even a sceptical caution would look upon it as trustworthy” (Khelawon, at para. 62, citing [J. H. Wigmore, Evidence in Trials at Common Law (2nd ed. 1923), vol. III], at p. 154); when the statement is so reliable that it is “unlikely to change under cross-examination” (Khelawon, at para. 107; Smith, at p. 937); when “there is no real concern about whether the statement is true or not because of the circumstances in which it came about” (Khelawon, at para. 62); when the only likely explanation is that the statement is true ([R. v. U. (F.J.), [1995] 3 S.C.R. 764], at para. 40).
[48] In the criminal context, “the threshold reliability analysis has a constitutional dimension because the difficulties of testing hearsay evidence can threaten the accused’s right to a fair trial” (Bradshaw, at para. 24). By ensuring that only hearsay that is necessary and reliable is admitted, “the trial judge acts as an evidentiary gatekeeper. She protects trial fairness and the integrity of the truth-seeking process” (para. 24).
C. Use of the Search Results in the Threshold Reliability Analysis
[49] Recall that, 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 the 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.
(Bradshaw, at para. 57) [Emphasis by PJM]
[52] With respect for the contrary view expressed by my colleagues in dissent, there is no connection between the discovery of K.A.’s pistols and the appellant’s degree of involvement. In no way can this evidence confirm that it was the appellant who handled a pistol in the washroom, and not K.A. (despite the fact that it was K.A. who was in possession of the weapons the next day). That aspect of the statement puts in issue not merely the handling of a weapon, but rather the handling of a weapon by the appellant. Consequently, it is necessary to determine how the principles set out in Bradshaw apply where several material aspects of a statement are not connected with each other. [Emphasis by PJM]
[53] I reject the Crown’s arguments on this point, as they conflict with the logic underlying the analytical framework established in Bradshaw. In my view, evidence cannot serve to corroborate the aspects of a statement with which it is not connected, even when the evidence confirms another material aspect of the statement in question.
[54] At the threshold reliability stage, “not all evidence that corroborates the declarant’s credibility, the accused’s guilt, or one party’s theory of the case, is of assistance” (Bradshaw, at para. 44). Accordingly, one can “only rely on corroborative evidence . . . if it shows, when considered as a whole and in the circumstances of the case, that the only likely explanation for the hearsay statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement” (para. 44). The function of corroborative evidence is thus to “mitigate the need for cross-examination, not generally, but on the point that the hearsay is tendered to prove” (para. 45 (emphasis in original)).
[55] It is true that it is the combined effect of the corroborative evidence and the circumstances of the case, and not the evidence taken in isolation, that must rule out plausible alternative explanations for the material aspects of the statement (see Bradshaw, at para. 47). However, this does not mitigate the need for a connection between the evidence and the aspect sought to be proved. In the absence of such a connection, 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 (see Bradshaw, at para. 44; see also paras. 45-46 and 72). Evidence that is not connected with the material aspects of the statement is therefore not capable, even in combination with the circumstances of the case, of ruling out plausible alternative explanations for those aspects.
[56] It follows that evidence that confirms one material aspect of a statement is not necessarily admissible to establish the statement’s reliability with respect to its other material aspects. When evidence merely confirms one material aspect of a statement and no more, the support it provides for other material aspects derives entirely from the fact that it boosts the declarant’s credibility. This holds true regardless of the materiality of the aspect of the statement that is confirmed by the evidence. As established in Bradshaw, it is not sufficient for evidence to support the declarant’s credibility generally, and such evidence cannot be used to assess the admissibility of other aspects of the statement. [Emphasis by PJM]
[58]….The Bradshaw framework serves to ensure that corroborative evidence is used only in cases where it bears on the aspect sought to be proved by adducing the statement. The requirement for a connection between the corroborative evidence and the aspect in question flows from the role that such evidence must play. Corroborative evidence must make it possible, given the circumstances of the case, to rule out plausible explanations other than the truth or accuracy of the material aspects of the statement (para. 57, point 4).
[59] While at first glance it may seem pedantic to deal with each material aspect separately, it is important to note that the Bradshaw criteria are designed to overcome the dangers posed by corroborative evidence. Where a statement does not have indicia of reliability of its own, “then it can add nothing to a case, but it may appear to do so if it is consistent with other evidence. Admitting a hearsay statement only because it is consistent with other evidence treats it as a makeweight: the statement would be added to the other evidence even though its own weight actually depends entirely on that other evidence” (D. M. Paciocco, P. Paciocco and L. Stuesser, The Law of Evidence (8th ed. 2020), at p. 167). Moreover, “it can be difficult to control the length and complexity of the admissibility voir dire if the reliability of the hearsay statement derives from other evidence. Where the search for consistency is taken too far, the admissibility voir dire can easily become a time-consuming shadow trial” (p. 167).
[62] In this case, the trial judge erred in finding that the statement’s truth as regards the location of the pistols corroborated the statement in its entirety. There is no connection, even an indirect one, between that evidence and the appellant’s degree of participation. The location of the pistols therefore cannot serve to show that threshold reliability is established through that aspect of the statement alone. Aside from establishing the truth of that aspect of the statement, that evidence is not capable of ruling out plausible alternative explanations for the events. For example, it cannot confirm that it was indeed the appellant and not K.A. who uttered threats against the complainant. As will be seen in the following section, such possible explanations are quite plausible given that it was in K.A.’s interest to exaggerate the appellant’s responsibility. [Emphasis by PJM]
[63] The remaining issue is whether, given the limited role played by the evidence of the location of the pistols, the threshold reliability of the statement has been established.
[66]…In my opinion, the majority of the Court of Appeal erred in finding that the threshold reliability of the statement had been established. Like Bachand J.A., I am of the view that the trial judge should not have admitted the statement.
[67] K.A.’s statement presents significant dangers. The majority of the Court of Appeal erred in ruling out the possibility that K.A. had an interest in minimizing his role in the events. At the time he made his statement, it was to K.A.’s advantage to provide an account that limited his participation to possession of the weapons. Such an account allowed him to explain the presence of the weapons at his residence while avoiding the charges that involved a greater degree of participation.
[68] The appellant correctly points out that because K.A. is an accomplice, his statement raises particular reliability concerns. In Youvarajah, Karakatsanis J. explained that “[c]riminal law is generally and rightfully suspicious of allegations made by a person against an accomplice. It has long been recognized that evidence of one accomplice against another may be motivated by self-interest and that it is dangerous to rely on such evidence absent other evidence which tends to confirm it” (para. 62). Indeed, “the underlying rationale for the admissibility of admissions as against the party making them falls away when they are sought to be used against a third party” (para. 59). This is especially true when the party making the admissions assumes less responsibility than they attribute to the third party, thus potentially facing less severe consequences than the third party (see Youvarajah, at para. 60; see also Bradshaw, at para. 92).
[69] The risk referred to by Karakatsanis J. in Youvarajah is clearly present in this case. Although K.A. incriminated himself to some extent, he portrayed his own conduct as being much less serious than that of the appellant. As the Crown points out, it is true that K.A. described the incident as an immature joke, which tended to minimize the extent of the appellant’s responsibility. However, in doing so, K.A. did not assume any greater responsibility himself; instead, he played down the seriousness of the incident as such. The specific risk in this case is not that K.A. wanted to exaggerate the appellant’s involvement in the abstract, but rather that he did so with the aim of evading his own responsibility. In short, there is a very real danger that K.A. tried to shift his responsibility onto the appellant in his statement. Indeed, as the appellant notes, K.A.’s statement places much of the responsibility on Fares and the appellant.
[70] In the absence of external evidence confirming that the appellant played the primary role in the washroom, the circumstantial guarantees cannot overcome the dangers presented by K.A.’s statement.
[71] As is the case for the absence of leading questions (see R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, at paras. 100-101), the absence of inconsistent statements, promises of benefit or a criminal lifestyle simply points to an absence of factors that, if present, would have detracted from an otherwise trustworthy statement. Nothing in the factual context of this case suggests that these circumstances have a higher degree of trustworthiness in relation to the specific dangers arising from K.A.’s statement.
[72] Moreover, some clarifications are required regarding the usefulness of the factors considered by the trial judge in the factual context of the case. The absence of a criminal lifestyle is not at all clear. On the contrary, K.A. indicated that he intended to sell the pistols on the black market with Fares. As for the presence of K.A.’s mother, that circumstance is not actually an indicium of reliability, because it is possible that K.A. did not want his mother to know his degree of involvement, which could have motivated him to lie. Accordingly, it is instead a neutral factor. The temporal proximity between the statement and the events serves to mitigate the risk that K.A. did not have an accurate recollection of the events. However, this factor is not useful in assessing the specific danger raised by the statement, namely, that K.A. had incentive to lie.
[73] My colleagues in dissent, citing para. 38 of R. v. L.T.H., 2008 SCC 49, [2008] 2 S.C.R. 739, refer to the fact that K.A. consulted counsel before making his statement. However, since one cannot speculate on the content of the discussions between K.A. and counsel, that consultation does not make it possible to exclude the risk that K.A. tried to minimize his responsibility. This risk is quite different from the reliability issues discussed by this Court at para. 38 of L.T.H., namely, “false confessions by young people inclined to make a statement in order to end the pressure of interrogation or to please an authority figure” and the need to “ensur[e] that any statement given manifests the exercise of free will”. Moreover, in L.T.H., the Court was dealing with s. 146(2)(b) of the Youth Criminal Justice Act, S.C. 2002, c. 1, a provision whose scope extends beyond simply consulting with counsel.
[74] Nor are the indicia of procedural reliability reassuring. The usual substitutes for the traditional safeguards are absent. There was no recording of the statement or the interview that preceded it (of which the police investigator had only a limited recollection at the voir dire). K.A. was not under oath, and although he was read his rights, he was not given a warning by the investigators concerning the need to tell them the truth and the consequences associated with lying (see B. (K.G.), at pp. 795-96). In addition, since K.A. claimed to have no recollection of the events, the defence was deprived of any opportunity to cross-examine him. Yet some form of cross-examination is usually required to establish procedural reliability (Bradshaw, at para. 28).
[75] In short, the indicia of reliability — whether substantive reliability, procedural reliability or both — do not support the admissibility of K.A.’s out-of-court statement. It cannot be said that cross-examining K.A. at the time he made his statement to the police would have added little if anything to the process. There are many aspects of the statement that, without cross-examination, remain impossible to verify. For example, there is no way to verify that K.A. was not aware of the issues between the appellant and the complainant or that the pistols belonged to Fares. There remains a real concern regarding the truthfulness of the statement given the opportunity that K.A. had to minimize his responsibility and to exaggerate the appellant’s. The indicia of reliability do not rule out this possibility. Thus, the combined effect of the corroborative evidence and the circumstances does not overcome “the specific hearsay dangers raised by the . . . statement” given by K.A., such that its “only likely explanation . . . is [K.A.’s] truthfulness about, or the accuracy of, the material aspects of the statement” (Bradshaw, at para. 47 (emphasis in original)).
E. Use of the Complainant’s Testimony in the Threshold Reliability Analysis
[76] The Crown also argues that the complainant’s testimony corroborates K.A.’s statement insofar as the appellant’s role is concerned, with the result that threshold reliability is established for that aspect of the statement. As discussed above, despite the fact that the complainant testified before the trial judge rendered his decision on the voir dire, his testimony was not part of the voir dire. In fact, the trial judge specifically asked the parties if all of the trial evidence would be tendered in the voir dire, and the defence refused to consent. The parties agreed that only K.A.’s demeanour during his testimony would be considered. It was therefore clear that the complainant’s testimony would not form part of the threshold reliability analysis. Nevertheless, at the end of its analysis, the majority of the Court of Appeal wrote that the [TRANSLATION] “striking similarity” between the complainant’s testimony and K.A.’s statement tended to confirm that the statement was sufficiently reliable to be admissible (para. 71). According to the Crown, this Court should also consider that evidence in analyzing threshold reliability, despite the fact that it was not formally tendered in the voir dire.
[77] This position must be rejected.
[78] On appeal, the only possible avenue for considering the complainant’s testimony is the curative proviso. However, the Crown chose not to invoke that provision before this Court. In any event, as the dissenting judge noted, the trial judge expressly referred to K.A.’s statement in his findings concerning the appellant’s guilt. It therefore cannot be concluded that the trial judge’s admission of the statement was a harmless or trivial error. Nor is it “clear that the evidence pointing to the guilt of the accused is so overwhelming that any other verdict but a conviction would be impossible” (see R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 31).
[79] As a result, the Court of Appeal could not consider the complainant’s testimony in deciding the appeal, except in the context of the curative proviso. Furthermore, it is not necessary to decide the issue raised by the Crown regarding the self-contained nature of the voir dire at the trial stage. This issue raises concerns related to the particular function of the voir dire, notably the principle that the voir dire must not “overtak[e] the trial” (see Bradshaw, at para. 42) as well as procedural fairness. Given that the Court of Appeal dealt only in passing with the complainant’s testimony and that the appellant has not really addressed the self-contained nature of the voir dire in his factum, I will leave consideration of this issue for another day.
VI. Conclusion
[80] For these reasons, I would allow the appeal, quash the convictions and order a new trial.
