Supreme Court sets ‘high bar’ for admissibility of hearsay evidence

Richard Fowler, who represented the accused, says the court rightly focused on the dangers of admitting evidence from disreputable witnesses.
Richard Fowler, who represented the accused, says the court rightly focused on the dangers of admitting evidence from disreputable witnesses.

The Supreme Court of Canada has ordered a new trial for a B.C. man convicted of two counts of first-degree murder in a case involving the admissibility of hearsay evidence and threshold reliability.

In Her Majesty the Queen v. Robert David Nicholas Bradshaw, the majority of the Supreme Court found that the trial judge had erred in admitting a video re-enactment statement into evidence, as “[t]he Crown failed to establish the threshold reliability of this statement on a balance of probabilities.”

“Hearsay is an out-of-court statement tendered for the truth of its contents,” Justice Andromache Karakatsanis wrote, with Chief Justice Beverley McLachlin and Justices Rosalie Abella, Richard Wagner and Russell Brown concurring.

“It is presumptively inadmissible because — in the absence of the opportunity to cross-examine the declarant at the time the statement is made — it is often difficult for the trier of fact to assess its truth. Thus hearsay can threaten the integrity of the trial’s truth-seeking process and trial fairness.

However, hearsay may exceptionally be admitted into evidence under the principled exception when it meets the criteria of necessity and threshold reliability.”

In March 2009, a woman and a man were shot to death in Langley, B.C., five days apart. The police targeted an associate, Roy Thielen, of the accused, Robert Bradshaw, in a “Mr. Big” operation and obtained from Thielen a confession claiming sole responsibility and also a confession naming Bradshaw as a participant in the first murder and the shooter in the second murder. After he was arrested, Thielen described the murders to the police without naming any accomplices. The next day he confessed to the murders, and performed a re-enactment of them in which he named Bradshaw.

Thielen was called as a witness for the Crown at Bradshaw’s trial but refused to testify. The Crown then applied to admit a videotaped recording of the re-enactment under the principled exception to the rule against hearsay. The trial judge admitted the videotape for the truth of its contents; he also held that defence counsel could enter Thielen’s prior inconsistent statements into evidence. A jury convicted Bradshaw on two counts of first-degree murder, but the Court of Appeal held that it was an error to admit the videotape of the re-enactment into evidence, set aside the convictions and ordered a new trial.

At issue on appeal was: “When can a trial judge rely on corroborative evidence to conclude that the threshold reliability of a hearsay statement is established?” Justice Karakatsanis wrote. “[C]orroborative evidence may be used to assess threshold reliability if it overcomes the specific hearsay dangers presented by the statement. These dangers may be overcome on the basis of 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.”

The majority of the court found that the trial judge “could not adequately test the trustworthiness of Thielen’s statement,” and the videotaped statement should not have been admitted into evidence.

Thielen, who had been described as a drug dealer, thug, “enforcer” and murderer, and who had given inconsistent statements about the Langley murders, was considered a Vetrovec witness: one who cannot be trusted to tell the truth, even under oath, wrote Justice Karakatsanis. And, she noted, Thielen “had a strong incentive to minimize his role in the crime and to shift responsibility,” and to implicate Bradshaw to reduce his own culpability in the murders.

In a strongly worded dissent, Justice Michael Moldaver, also writing for Justice Suzanne Côté, found that “the majority has departed from the functional approach of threshold reliability by unduly restricting the extrinsic evidence that a jury could can consider when assessing a statement’s substantive reliability and by adopting a narrow view of the procedural safeguards available at trial than can equip the jury with the tools it needs to assess the ultimate reliability of a statement.”

Thielen’s re-enactment of the crimes, Justice Moldaver found, was corroborated by three separate groups of evidence: i) surreptitiously recorded conversations that Thielen made with Bradshaw, in which the latter indicated his involvement in the murders; ii) circumstantial evidence implicating Bradshaw in the murders; and iii) forensic evidence from the crime scene confirming Thielen’s account of the details of the murders.

“In conjunction, . . . powerful corroborative evidence and procedural safeguards — were capable of satisfying the test for threshold reliability” in this case, Moldaver wrote.

The key distinction between the Crown’s position and the respondent’s position in the appeal was what kind of evidence could be considered corroborative for the purpose of establishing threshold reliability, the respondent’s counsel, Richard Fowler, of Fowler and Smith in Vancouver, told Legal Feeds.

“In my view, [the majority of the court] quite rightly focuses the inquiry on the very specific dangers of admitting evidence from disreputable witnesses who aren’t available for cross-examination,” Fowler said, noting the importance of “in-court testimony where a witness can be observed, where his truthfulness and reliability can be assessed,” which assists in ensuring the fairness of the trial and reliability of the verdict.

The majority decision provided an opportunity for the high court to clarify the standards for admission of hearsay evidence, says Louis Strezos of Louis P. Strezos and Associate in Toronto, who acted on appeal to the Supreme Court for an intervener, the Criminal Lawyers’ Association of Ontario.

“The Supreme Court’s jurisprudence has been misinterpreted by lower courts,” he says, and it “needed to tighten up.

“My respectful read on this [decision] is that it’s going to make it tougher for the Crown to introduce hearsay, and the defence will rely on Bradshaw. It’s an important clarification of the Supreme Court’s prior decisions, and this will be the guiding case on hearsay.”
Counsel for the attorney general of British Columbia was not immediately available for comment.

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