Her Majesty The Queen Appellant v. Robert David Nicholas Bradshaw, 2017 SCC 35

SUPREME COURT OF CANADA Citation: R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865 Appeal Heard: November 3, 2016 Judgment Rendered: June 29, 2017 Docket: 36537 Between: Her Majesty The Queen Appellant and Robert David Nicholas Bradshaw Respondent - and - Attorney General of Ontario, British Columbia Civil Liberties Association and Criminal Lawyers’ Association of Ontario Interveners Coram: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Côté and Brown JJ. Reasons for Judgment: (paras. 1 to 97) Karakatsanis J. (McLachlin C.J. and Abella, Wagner and Brown JJ. concurring) Dissenting Reasons: (paras. 98 to 188) Moldaver J. (Côté J. concurring)

R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865 Her Majesty The Queen Appellant v. Robert David Nicholas Bradshaw Respondent and Attorney General of Ontario, British Columbia Civil Liberties Association and Criminal Lawyers’ Association of Ontario Interveners Indexed as: R. v. Bradshaw 2017 SCC 35 File No.: 36537. 2016: November 3; 2017: June 29.

Present: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Côté and Brown JJ. on appeal from the court of appeal for british columbia Criminal law — Evidence — Hearsay — Admissibility — Principled exception to hearsay rule — Trial judge admitting co-accused’s hearsay statement into evidence — When can trial judge rely on corroborative evidence to conclude that threshold reliability of hearsay statement is established. Two people were shot to death. Suspected by police, T became the target of a Mr. Big investigation, during which he told an undercover officer that he shot both victims. He then told Mr.

Big that he had shot one victim and that B had shot the other. T was arrested. When he later re-enacted the murders for police, he implicated B in both. T and B were charged with two counts of first degree murder and T pled guilty to second degree murder. Because T refused to give sworn testimony at B’s trial, the Crown sought to admit into evidence T’s re-enactment, which had been video-recorded. Following a voir dire , the trial judge admitted the re-enactment, under the principled exception to the hearsay rule. A jury convicted B on two counts of first degree murder.

The Court of Appeal allowed the appeal, set aside B’s convictions and ordered a new trial. Held (Moldaver and Côté JJ. dissenting): The appeal should be dismissed . Per McLachlin C.J. and Abella, Karakatsanis, Wagner and Brown JJ.: Hearsay evidence is presumptively inadmissible because it is often difficult for the trier of fact to assess its truth. However, it can be admitted under the principled exception if the criteria of necessity and threshold reliability are met on a balance of probabilities. In this case, the necessity of the hearsay evidence is established because T refused to testify.

Thus, its admissibility rests on whether threshold reliability is met. Threshold reliability is established when the hearsay is sufficiently reliable to overcome the dangers arising from the difficulty of testing it. The hearsay dangers relate to the difficulties of assessing the declarant’s perception, memory, narration or sincerity. These dangers can be overcome by showing that (1) there are adequate substitutes for testing truth and accuracy (procedural reliability) or (2) that there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability).

Substantive reliability is established when the statement is unlikely to change under cross-examination. To determine whether substantive reliability is established, the trial judge can consider the circumstances in which the statement was made and evidence (if any) that corroborates or conflicts with the statement.

A trial judge can only rely on corroborative evidence to establish substantive reliability 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. First, corroborative evidence must go to the truthfulness or accuracy of the material aspects of the hearsay statement.

Since hearsay is tendered for the truth of its contents, corroborative evidence must go to the truthfulness or accuracy of the content of the statement that the moving party seeks to rely on. Second, corroborative evidence must assist in overcoming the specific hearsay dangers raised by the tendered statement. Corroborative evidence does so if its combined effect, when considered in the circumstances of the case, shows 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.

Otherwise, alternative explanations for the statement that could have been elicited or probed through cross-examination, and the hearsay dangers, persist. Corroborative evidence is of assistance in establishing substantive reliability if it shows that alternative explanations for the statement are unavailable. In contrast, corroborative evidence that is equally consistent with the truthfulness and accuracy of the statement as well as another hypothesis is of no assistance. To be relied on for the purpose of rejecting alternative hypotheses, corroborative evidence must itself be trustworthy.

In sum, 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.

The trial judge erred in relying significantly on corroborative evidence that was of no assistance in establishing substantive reliability to deem the re-enactment statement admissible. The material aspect of the statement was T’s assertion that B participated in the murders. The specific danger raised by T’s statement was the inability of the trier of fact to assess whether T lied about B’s participation in the murders. T gave inconsistent statements about B’s participation. He also had a significant motive to lie to reduce his own culpability.

Furthermore, T was a Vetrovec witness, a witness who cannot be trusted due to his unsavoury character. Given the hearsay dangers presented by the re-enactment statement, an alternative explanation is that T lied about B’s participation in the murders. Therefore, corroborative evidence will only assist in establishing the substantive reliability of the re-enactment statement if it shows, when considered in the circumstances of the case, that the only likely explanation is that T was truthful about B’s participation.

Considered as a whole, the corroborative evidence relied on by the trial judge did not meet this standard. For example, while the weather evidence and forensic evidence showed that T accurately described the way the murders unfolded and the weather on the nights of the murders, this evidence does not mitigate the danger that T lied about B’s participation. Furthermore, while there are recordings of B admitting that he participated in the murders, there are concerns about the trustworthiness of these admissions.

Much of the corroborative evidence relied on by the trial judge was probative of B’s guilt, and thus could be considered by the trier of fact in the trial on the merits, but none of it was of assistance in establishing the threshold reliability of the re-enactment statement. The threshold reliability of the hearsay statement is not otherwise established. Jury warnings about the dangers of hearsay evidence or Vetrovec testimony do not provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement.

Instructing a jury on how to evaluate a statement that it lacks the means to evaluate does not address the hearsay dangers that underlie the exclusionary rule. Given that the trier of fact could not adequately test the trustworthiness of T’s statement, and there were no circumstances or corroborative evidence showing that this statement was inherently trustworthy, it should not have been admitted into evidence. Per Moldaver and Côté JJ. (dissenting): The trial judge did not err in admitting T’s re-enactment. His ruling was amply supported by the record and is entitled to deference.

The principled approach to hearsay recognizes that threshold reliability can be met in three ways: (1) where a statement has sufficient features of substantive reliability; (2) where the statement has adequate features of procedural reliability; or (3) where the statement does not satisfy either of the first two ways, but incorporates features of both which, in combination, justify its admission.

Under this third way, where a statement has a sufficient level of trustworthiness, relative to the strength of the procedural safeguards for the trier of fact to evaluate its ultimate reliability, the statement is safe to admit. In this case, T’s re-enactment was admissible under the third way of establishing threshold reliability.

The hearsay dangers at issue — sincerity along with memory and perception — were sufficiently overcome by powerful corroborative evidence indicating the statement’s trustworthiness and a number of procedural safeguards that provided the jury with the tools it needed to evaluate its truth and accuracy.

In reaching a different conclusion, the majority has departed from the functional approach to threshold reliability by unduly restricting the extrinsic evidence that a court can consider when assessing a statement’s substantive reliability and by adopting a narrow view of the procedural safeguards available at trial that can equip the jury with the tools it needs to assess the ultimate reliability of a statement. The functional approach emphasizes that there is no bright-line distinction between factors that inform threshold and ultimate reliability.

For extrinsic evidence, the inquiry is focused on whether the evidence addresses hearsay dangers by providing information about whether the statement is trustworthy. The majority’s approach instead creates a threshold test within the threshold test, which unnecessarily complicates the analysis and discards extrinsic evidence that can be crucial for evaluating threshold reliability. Trial judges should be trusted to limit the scope of extrinsic evidence that can be considered in a hearsay voir dire on a case-by-case basis to ensure that the proceedings are not derailed.

In this unusual case, the corroborative evidence included surreptitiously recorded conversations in which B admitted his involvement in the murders, telephone records as circumstantial evidence implicating B in the murders and forensic evidence from the crime scenes confirming T’s account of the details of the murders. Considered cumulatively, this evidence provides powerful support for the trustworthiness of T’s re-enactment.

There was also circumstantial indicia of trustworthiness, including: the fact that the re-enactment was voluntary and free flowing; that it was contrary to T’s interest, in that he did not attempt to shift blame to B but instead implicated himself in two counts of first degree murder; and that T’s alleged motivation to fabricate was rebutted by his prior consistent statement to Mr. Big.

There is no evidence of any inducements or assurances made by the police prior to T’s re-enactment, nor is there any information to suggest that T’s plea to second degree murder had anything to do with his participation in the re-enactment. As for procedural reliability, there is no principled distinction between safeguards in place at the time the hearsay statement was made and safeguards available at trial. Both enhance the ability of the trier of fact to critically evaluate the evidence.

As in this case, the latter may include jury cautions, the limited admission of prior inconsistent statements that contradict the hearsay statement, requiring the Crown to call the police officers who took prior inconsistent statements as witnesses so that they can be cross-examined by defence counsel, and permitting enhanced leeway for defence counsel during closing submissions. The trial judge is uniquely positioned to adapt and implement these measures based on the specific circumstances of the case.

The majority’s unwillingness to consider these various procedural safeguards relied upon by the trial judge in this case leads it to skirt the third way of establishing threshold reliability — the one applied by the trial judge in this case — in which features of substantive and procedural reliability may, in conjunction, justify the admission of a hearsay statement.

In conjunction, the re-enactment’s features of substantive and procedural reliability were capable of satisfying the test forthreshold reliability. The trial judge made a difficult call in a close case. He was in the best position to make that call based on hisassessment of the trustworthiness of the evidence and the jury’s ability to evaluate it. And his analysis discloses no legal error. As aresult, his ruling is entitled to deference. It is not the role of the Court to second guess the trial judge’s reasonably exercised judgmentfrom a position far removed from the trial setting.

Doing so betrays both the deference owed to trial judges and the trust and confidenceplaced in juries to follow instructions and use their common sense and reason to evaluate evidence. The trial judge’s refusal to admit T’s prior inconsistent statement given on May 15, 2010, for the truth of its contents is alsoentitled to deference. The trial judge applied the correct test and considered the relevant factors in finding this statement to beinadmissible.

This included the fact that the statement was not video-recorded, that it was contradicted by extrinsic evidence and that Thad a strong incentive to exaggerate his involvement in the murders. Ultimately, there is no reason to send this case back for a second trial. B had a fair trial before a properly instructed jury thatwas well positioned to critically evaluate the reliability of the re-enactment. Accordingly, his two convictions for first degree murdershould be restored. Cases Cited By Karakatsanis J. Applied: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787; referred to: Vetrovec v.

The Queen, (SCC),[1982] 1 S.C.R. 811; R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544; R. v. B. (K.G.), (SCC), [1993] 1 S.C.R. 740; R. v.Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520; R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720; R. v. Hawkins, (SCC), [1996] 3 S.C.R. 1043; R. v. U. (F.J.), (SCC), [1995] 3 S.C.R. 764; R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R.517; R. v. Smith, (SCC), [1992] 2 S.C.R. 915; R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298; R. v. Starr, 2000 SCC40, [2000] 2 S.C.R. 144; R. v. R. (D.), (SCC), [1996] 2 S.C.R. 291; R. v. Khan, (SCC), [1990] 2 S.C.R.531; R. v.

Khela, 2009 SCC 4, [2009] 1 S.C.R. 104; R. v. Smith, 2009 SCC 5, [2009] 1 S.C.R. 146; R. v. Salah, 2015 ONCA 23, 319C.C.C. (3d) 373. By Moldaver J. (dissenting) R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787; R. v. Devine, 2008SCC 36, [2008] 2 S.C.R. 283; R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, aff’g (2006), (ON CA), 84 O.R.(3d) 292; R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720; R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517; R. v. Khan, (SCC), [1990] 2 S.C.R. 531; R. v. Hawkins, (SCC), [1996] 3 S.C.R. 1043; R. v.

B. (K.G.), (SCC), [1993] 1 S.C.R. 740; R. v. Hamilton, 2011 ONCA 399, 271 C.C.C. (3d) 208; R. v. U. (F.J.), (SCC), [1995] 3S.C.R. 764; R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544; R. v. Abbey, 2009 ONCA 624, 246 C.C.C. (3d) 301; R. v. Carroll, 2014ONCA 2, 304 C.C.C. (3d) 252; R. v. McNamara (No. 1) (1981), (ON CA), 56 C.C.C. (2d) 193; R. v. R. (T.), 2007ONCA 374, 85 O.R. (3d) 481; R. v. Lowe, 2009 BCCA 338, 274 B.C.A.C. 92; R. v. Goodstoney, 2007 ABCA 88, 218 C.C.C. (3d) 270;R. v. Smith, 2009 SCC 5, [2009] 1 S.C.R. 146; R. v. Adjei, 2013 ONCA 512, 309 O.A.C. 328; R. v.

Stirling, 2008 SCC 10, [2008] 1S.C.R. 272; R. v. Corbett, (SCC), [1988] 1 S.C.R. 670; R. v. Carroll, 1999 BCCA 65, 118 B.C.A.C. 219; R. v. Noël,2002 SCC 67, [2002] 3 S.C.R. 433; R. v. S. (S.), 2008 ONCA 140, 232 C.C.C. (3d) 158; R. v. Post, 2007 BCCA 123, 217 C.C.C. (3d)225; R. v. Tash, 2013 ONCA 380, 306 O.A.C. 173; R. v. Kimberley (2001), (ON CA), 56 O.R. (3d) 18. Authors Cited Akhtar, Suhail. “Hearsay: The Denial of Confirmation” (2005), 26 C.R. (6th) 46. Lacelle, Laurie. “The Role of Corroborating Evidence in Assessing the Reliability of Hearsay Statements for Substantive Purposes”(1999), 19 C.R. (5th) 376.

Lederman, Sidney N., Alan W. Bryant and Michelle K. Fuerst. The Law of Evidence in Canada, 4th ed. Markham, Ont.: LexisNexis,2014. Paciocco, David M., and Lee Stuesser. The Law of Evidence, 7th ed. Toronto: Irwin Law, 2015. Stewart, Hamish. “Khelawon: The Principled Approach to Hearsay Revisited” (2008), 12 Can. Crim. L.R. 95. Wigmore, John Henry. A treatise on the Anglo-American System of Evidence in Trials at Common Law, vol. III, 2nd ed. Boston: Little,Brown and Co., 1923.

APPEAL from a judgment of the British Columbia Court of Appeal (Neilson, Bennett and Garson JJ.A.), 2015 BCCA 195,323 C.C.C. (3d) 475, 372 B.C.A.C. 77, 640 W.A.C. 77, 20 C.R. (7th) 398, [2015] B.C.J. No. 884 (QL), 2015 CarswellBC 1168 (WLCan.), setting aside the accused’s convictions for first degree murder and ordering a new trial. Appeal dismissed, Moldaver and Côté JJ.dissenting. Margaret A. Mereigh and David Layton, for the appellant. Richard S. Fowler, Q.C., Eric Purtzki and Karin Blok, for the respondent. Michael Bernstein, for the intervener the Attorney General of Ontario. Greg J.

Allen, for the intervener the British Columbia Civil Liberties Association.

Louis P. Strezos and Samuel Walker, for the intervener the Criminal Lawyers’ Association of Ontario. The judgment of McLachlin C.J. and Abella, Karakatsanis, Wagner and Brown JJ. was delivered by Karakatsanis J. — I. Introduction [1] Hearsay is an out-of-court statement tendered for the truth of its contents. 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 trierof fact to assess its truth. Thus hearsay can threaten the integrity of the trial’s truth-seeking process and trial fairness.

However, hearsaymay exceptionally be admitted into evidence under the principled exception when it meets the criteria of necessity and thresholdreliability. [2] In this case, the Crown tendered hearsay from Roy Thielen, an accomplice, implicating Robert Bradshaw, theaccused, in two murders. The trial judge ruled that this hearsay statement was admissible.

The Court of Appeal allowed the appeal andordered a new trial. [3] The following issue arises in this appeal: When can a trial judge rely on corroborative evidence to conclude that thethreshold reliability of a hearsay statement is established? [4] In my view, corroborative evidence may be used to assess threshold reliability if it overcomes the specific hearsaydangers presented by the statement.

These dangers may be overcome on the basis of corroborative evidence if it shows, when consideredas a whole and in the circumstances of the case, that the only likely explanation for the hearsay statement is the declarant’s truthfulnessabout, or the accuracy of, the material aspects of the statement.

The material aspects are those relied on by the moving party for the truthof their contents. [5] Here, the hearsay statement was tendered for the truth of Thielen’s claim that Bradshaw participated in the murders.The specific hearsay danger raised by Thielen’s statement was the inability of the trier of fact to assess whether Thielen lied aboutBradshaw’s participation in the murders. In addition to the reliability dangers that are inherent in all hearsay statements, there are specificreasons to be concerned that Thielen lied. Thielen had a motive to lie to shift the blame to Bradshaw.

Thielen previously said that he hadshot both victims, and had not implicated Bradshaw. Furthermore, Thielen was a Vetrovec witness, a witness who cannot be trusted totell the truth due to his unsavoury character (Vetrovec v. The Queen, (SCC), [1982] 1 S.C.R. 811). [6] The trial judge relied significantly on the existence of corroborative evidence to deem Thielen’s statementadmissible. However, the evidence he relied on did not, when considered in the circumstances of the case, show that the only likelyexplanation was that Thielen was truthful about Bradshaw’s involvement in the murders.

It did not substantially negate the possibilitythat Thielen lied about Bradshaw’s participation in the murders. While this corroborative evidence may increase the probative value ofthe re-enactment statement if admitted, it is of no assistance in assessing the statement’s threshold reliability.

The trial judge thereforeerred in relying on this corroborative evidence. [7] Given that the trier of fact could not adequately test the trustworthiness of Thielen’s statement, and there were nocircumstances or corroborative evidence showing that this statement was inherently trustworthy, it should not have been admitted intoevidence. [8] For the reasons that follow, I would dismiss the appeal. II. Background [9] Laura Lamoureux and Marc Bontkes were killed in March 2009, five days apart. The police suspected that Thielenwas involved in both murders. They ran a Mr. Big operation targeting Thielen. In a Mr.

Big operation, undercover officers recruit asuspect into a fictitious criminal organization for the purpose of eliciting a confession from him (R. v. Hart, 2014 SCC 52, [2014] 2S.C.R. 544, at para. 85). The officers befriend the suspect and demonstrate that membership in the criminal organization providesrewards and friendship. The suspect discovers that his membership is conditional on a confession to the crime boss, Mr. Big (Hart, atparas. 1-2). [10] As part of the Mr. Big operation, Thielen went on a road trip with Cst. B., an undercover agent, in May 2010. Duringthe road trip, Thielen told Cst.

B. that he had shot both Lamoureux and Bontkes. [11] In July 2010, Thielen met an undercover agent posing as the crime boss. During this meeting, Thielen said that hehad shot Lamoureux but that “Paulie” and Michelle Motola had shot Bontkes. “Paulie” was Bradshaw’s nickname. [12] Later that day, Thielen and Bradshaw met up at the Best Western Hotel. Their conversation was recorded, but onlythe latter

part is audible. Bradshaw said that he had shot Bontkes and had participated in both murders. [13] Two days later, Thielen and Bradshaw met at Bothwell Park. Bradshaw discussed an unsuccessful attempt to killBontkes, which preceded Bontkes’s actual murder in March 2009. [14] Thielen was arrested on July 30, 2010. He initially denied his involvement in both murders. However, when thepolice told Thielen that he had been the target of a Mr.

Big operation, he then described the murders and identified unnamed participants.The next day, he made another statement to the police in which he described the murders and directly named Bradshaw. A few dayslater, Thielen re-enacted the murders for the police officers and implicated Bradshaw in both murders. This re-enactment was recorded in

a roughly six-hour video. [15] Thielen and Bradshaw were initially charged together with two counts of first degree murder. However, Thielen pledguilty to second degree murder before the trial started. Thielen was called as a Crown witness in Bradshaw’s trial, but refused to besworn to give testimony. As a result, he was held in contempt of court. The Crown sought to admit part of the re-enactment video — ahearsay statement — into evidence. III. Decisions Below [16] Following a voir dire, Greyell J. admitted the re-enactment video into evidence (2012 BCSC 2025).

He found thatthis hearsay statement was necessary and sufficiently reliable to be admitted. In finding that the statement was sufficiently reliable, henoted that the re-enactment was voluntary, incriminating, and was made after Thielen received legal advice. The statement was alsocorroborated by extrinsic evidence. However, given Thielen’s unsavoury character, the trial judge determined that a strong Vetrovecwarning regarding the re-enactment video was required. [17] The British Columbia Court of Appeal held that the trial judge erred in admitting the re-enactment video because itwas not sufficiently reliable.

The court noted that the trial judge relied significantly on evidence that did not implicate Bradshaw in themurders as corroboration. Furthermore, in the recorded conversations at the Best Western Hotel and Bothwell Park, Bradshaw did notimplicate himself in the murders to the degree that Thielen implicated Bradshaw in the re-enactment. The British Columbia Court ofAppeal concluded that the trial judge erred in finding that threshold reliability was established. It allowed the appeal, set aside the guiltyverdicts, and ordered a new trial (2015 BCCA 195, 323 C.C.C. (3d) 475). IV. Analysis A.

Legal Principles [18] Hearsay can exceptionally be admitted into evidence if it is necessary and sufficiently reliable. This appeal raises thefollowing question: When can a trial judge rely on corroborative evidence to conclude that the threshold reliability of a hearsay statementis established? To answer, I turn to the rationale for the rule against hearsay and for the principled exception to this rule.

(1) The Principled Exception to the Hearsay Rule [19] The truth-seeking process of a trial is predicated on the presentation of evidence in court. Litigants make their caseby presenting real evidence and viva voce testimony to the trier of fact. In court, witnesses give testimony under oath or solemnaffirmation. The trier of fact directly observes the real evidence and hears the testimony, so there is no concern that the evidence wasrecorded inaccurately. This process gives the trier of fact robust tools for testing the truthfulness of evidence and assessing its value.

Todetermine whether a witness is telling the truth, the trier of fact can observe the witness’s demeanor and assess whether the testimonywithstands testing through cross-examination (R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 35). [20] Hearsay is an out-of-court statement tendered for the truth of its contents. Because hearsay is declared outside ofcourt, it is often difficult for the trier of fact to assess whether it is trustworthy.

Generally, hearsay is not taken under oath, the trier offact cannot observe the declarant’s demeanor as she makes the statement, and hearsay is not tested through cross-examination (R. v.B. (K.G.), (SCC), [1993] 1 S.C.R. 740, at p. 764). Allowing a trier of fact to consider hearsay can thereforecompromise trial fairness and the trial’s truth-seeking process. The hearsay statement may be inaccurately recorded, and the trier of factcannot easily investigate the declarant’s perception, memory, narration, or sincerity (Khelawon, at para. 2).

As Fish J. explains in R. v.Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520: First, the declarant may have misperceived the facts to which the hearsay statement relates; second, even if correctly perceived, therelevant facts may have been wrongly remembered; third, the declarant may have narrated the relevant facts in an unintentionallymisleading manner; and finally, the declarant may have knowingly made a false assertion.

The opportunity to fully probe these potentialsources of error arises only if the declarant is present in court and subject to cross-examination. [Emphasis in original; para. 32.] [21] Given the dangers that hearsay evidence presents, “[t]he fear is that untested hearsay evidence may be afforded moreweight than it deserves” (Khelawon, at para. 35).

Therefore, while all relevant evidence is generally admissible, hearsay is presumptivelyinadmissible (Khelawon, at paras. 2-3). [22] However, some hearsay evidence “presents minimal dangers and its exclusion, rather than its admission, wouldimpede accurate fact finding” (Khelawon, at para. 2 (emphasis in original)). Thus, categorical exceptions to the rule excluding hearsaydeveloped through the common law over time. These traditional exceptions are based on admitting types of hearsay statements that wereconsidered necessary and reliable, such as dying declarations (Khelawon, at para. 42; R. v.

Youvarajah, 2013 SCC 41, [2013] 2 S.C.R.720, at para. 20; J. H. Wigmore, Evidence in Trials at Common Law (2nd ed. 1923), vol. III, at p. 152). [23] Eventually, a more flexible approach to hearsay developed through the jurisprudence. Under the principledexception, hearsay can exceptionally be admitted into evidence when the party tendering it demonstrates that the twin criteria ofnecessity and threshold reliability are met on a balance of probabilities (Khelawon, at para. 47). [24] By only admitting necessary and sufficiently reliable hearsay, the trial judge acts as an evidentiary gatekeeper.

Sheprotects trial fairness and the integrity of the truth-seeking process (Youvarajah, at paras. 23 and 25). In criminal proceedings, thethreshold reliability analysis has a constitutional dimension because the difficulties of testing hearsay evidence can threaten theaccused’s right to a fair trial (Khelawon, at paras. 3 and 47).

Even when the trial judge is satisfied that the hearsay is necessary andsufficiently reliable, she has discretion to exclude this evidence if its prejudicial effect outweighs its probative value (Khelawon, at para.49). [25] In this case, the necessity of the re-enactment evidence is established because Thielen refused to testify. Thus, its

admissibility rests on whether threshold reliability is met.

(2) Threshold Reliability [26] To determine whether a hearsay statement is admissible, the trial judge assesses the statement’s threshold reliability.Threshold reliability is established when the hearsay “is sufficiently reliable to overcome the dangers arising from the difficulty oftesting it” (Khelawon, at para. 49). These dangers arise notably due to the absence of contemporaneous cross-examination of the hearsaydeclarant before the trier of fact (Khelawon, at paras. 35 and 48).

In assessing threshold reliability, the trial judge must identify thespecific hearsay dangers presented by the statement and consider any means of overcoming them (Khelawon, at paras. 4 and 49; R. v.Hawkins, (SCC), [1996] 3 S.C.R. 1043, at para. 75).

The dangers relate to the difficulties of assessing the declarant’sperception, memory, narration, or sincerity, and should be defined with precision to permit a realistic evaluation of whether they havebeen overcome. [27] The hearsay dangers can be overcome and threshold reliability can be established by showing that (1) there areadequate substitutes for testing truth and accuracy (procedural reliability) or (2) there are sufficient circumstantial or evidentiaryguarantees that the statement is inherently trustworthy (substantive reliability) (Khelawon, at paras. 61-63; Youvarajah, at para. 30). [28] Procedural reliability is established when “there are adequate substitutes for testing the evidence”, given that thedeclarant has not “state[d] the evidence in court, under oath, and under the scrutiny of contemporaneous cross-examination” (Khelawon,at para. 63).

These substitutes must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of thehearsay statement (Khelawon, at para. 76; Hawkins, at para. 75; Youvarajah, at para. 36). Substitutes for traditional safeguards include avideo recording of the statement, the presence of an oath, and a warning about the consequences of lying (B. (K.G.), at pp. 795-96).However, some form of cross-examination of the declarant, such as preliminary inquiry testimony (Hawkins) or cross-examination of arecanting witness at trial (B. (K.G.); R. v.

U. (F.J.), (SCC), [1995] 3 S.C.R. 764), is usually required (R. v. Couture, 2007SCC 28, [2007] 2 S.C.R. 517, at paras. 92 and 95). In this respect, I disagree with the Court of Appeal’s categorical assertion thatsafeguards relevant to assessing procedural reliability are only “those in place when the statement is taken” (para. 30).

Some safeguardsimposed at trial, such as cross-examination of a recanting witness before the trier of fact, may provide a satisfactory basis for testing theevidence. [29] However, jury warnings about the dangers of hearsay evidence or Vetrovec testimony do not provide adequatesubstitutes for traditional safeguards. Instructing a jury on how to evaluate a statement that it lacks the means to evaluate does not addressthe hearsay dangers that underlie the exclusionary rule.

Furthermore, Vetrovec warnings are designed to address concerns about awitness who is inherently untrustworthy, despite the opportunity to cross-examine in court. They are not tools for assessing the truth andaccuracy of a hearsay statement in the absence of contemporaneous cross-examination. [30] A hearsay statement is also admissible if substantive reliability is established, that is, if the statement is inherentlytrustworthy (Youvarajah, at para. 30; R. v. Smith, (SCC), [1992] 2 S.C.R. 915, at p. 929).

To determine whether thestatement is inherently trustworthy, the trial judge can consider the circumstances in which it was made and evidence (if any) thatcorroborates or conflicts with the statement (Khelawon, at paras. 4, 62 and 94-100; R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298,at para. 55). [31] While the standard for substantive reliability is high, guarantee “as the word is used in the phrase ‘circumstantialguarantee of trustworthiness’, does not require that reliability be established with absolute certainty” (Smith, at p. 930).

Rather, the trialjudge must be satisfied that the statement is “so reliable that contemporaneous cross-examination of the declarant would add little ifanything to the process” (Khelawon, at para. 49). The level of certainty required has been articulated in different ways throughout thisCourt’s jurisprudence.

Substantive reliability is established when the statement “is made under circumstances which substantially negatethe possibility that the declarant was untruthful or mistaken” (Smith, at p. 933); “under such circumstances that even a sceptical cautionwould look upon it as trustworthy” (Khelawon, at para. 62, citing Wigmore, 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 whetherthe statement is true or not because of the circumstances in which it came about” (Khelawon, at para. 62); when the only likelyexplanation is that the statement is true (U. (F.J.), at para. 40). [32] These two approaches to establishing threshold reliability may work in tandem.

Procedural reliability and substantivereliability are not mutually exclusive (Khelawon, at para. 65) and “factors relevant to one can complement the other” (Couture, at para.80). That said, the threshold reliability standard always remains high — the statement must be sufficiently reliable to overcome thespecific hearsay dangers it presents (Khelawon, at para. 49).

For example, in U. (F.J.), where the Court drew on elements of substantiveand procedural reliability to justify the admission of a hearsay statement, both cross-examination of the recanting witness andcorroborative evidence were required to meet threshold reliability, though neither on its own would have sufficed (see also Blackman, atparas. 37-52). I know of no other example from this Court’s jurisprudence of substantive and procedural reliability complementing eachother to justify the admission of a hearsay statement.

Great care must be taken to ensure that this combined approach does not lead to theadmission of statements despite insufficient procedural safeguards and guarantees of inherent trustworthiness to overcome the hearsaydangers.

(3) Corroborative Evidence and Substantive Reliability [33] With these principles in mind, I turn to the issue at the heart of this appeal: When and how can a trial judge rely oncorroborative evidence to conclude that substantive reliability is established? [34] The Crown submits that threshold reliability involves a consideration of all the corroborative evidence that supportsthe truthfulness of a statement, including evidence that does not implicate the accused, or directly confirm the disputed aspect of thestatement.

The Crown explains that this approach to corroboration is aligned with other areas of the law, including corroboration whenassessing the ultimate reliability of hearsay statements, the ultimate reliability of unsavoury witness statements, and the thresholdreliability of Mr. Big statements.

[ 35 ] In contrast, the respondent Bradshaw submits that the trial judge can only consider evidence that corroborates the purpose for which a hearsay statement is tendered, and notes that the re-enactment statement was tendered to implicate him in the murders. [ 36 ] In my view, the Crown’s position that “a uniform definition of confirmatory evidence” should be employed “at both the threshold and ultimate reliability stages” is untenable because it misconstrues the relationship between threshold and ultimate reliability (A.F., at para. 96).

It also misconstrues the relationship between threshold reliability and probative value. [ 37 ] In R. v. Starr , 2000 SCC 40 , [2000] 2 S.C.R. 144, this Court held that corroborative evidence could not be considered in assessing the threshold reliability of hearsay. This bright-line rule was created to ensure that the trial judge did not invade the province of the trier of fact by pre-determining a hearsay statement’s ultimate reliability (para. 217). [1] [ 38 ] Khelawon overturned Starr on this point.

Charron J. explained that, in appropriate cases, corroborative or conflicting evidence can be considered in assessing threshold reliability (paras. 93-100). Khelawon established that “an item of evidence [that] goes to the trustworthiness of the statement . . . should no longer be excluded simply on the basis that it is corroborative in nature” ( Blackman , at para. 55 (emphasis added)). But “[i]t is important to emphasize that Khelawon did not broaden the scope of the admissibility inquiry; it merely refocused it” ( Blackman , at para. 54).

While Khelawon overturned the prohibition on considering corroborative evidence in the admissibility inquiry, it reaffirmed the distinction between threshold and ultimate reliability (para. 50; Blackman , at para. 56). [ 39 ] The distinction between threshold and ultimate reliability, while “a source of confusion”, is crucial ( Khelawon , at para. 50 ). Threshold reliability concerns admissibility, whereas ultimate reliability concerns reliance ( Khelawon , at para. 3 ).

When threshold reliability is based on the inherent trustworthiness of the statement, the trial judge and the trier of fact may both assess the trustworthiness of the hearsay statement. However, they do so for different purposes ( Khelawon , at paras. 3 and 50 ). In assessing ultimate reliability, the trier of fact determines whether, and to what degree, the statement should be believed, and thus relied on to decide issues in the case ( Khelawon , at para. 50 ; D. M. Paciocco and L. Stuesser, The Law of Evidence (7th ed. 2015), at pp. 35-36).

This determination is made “in the context of the entirety of the evidence” including evidence that corroborates the accused’s guilt or the declarant’s overall credibility ( Khelawon , at para. 3 ). [ 40 ] In contrast, in assessing threshold reliability, the trial judge’s preoccupation is whether in-court, contemporaneous cross-examination of the hearsay declarant would add anything to the trial process ( Khelawon , at para. 49 ; see also H. Stewart, “ Khelawon : The Principled Approach to Hearsay Revisited” (2008), 12 Can. Crim. L.R. 95, at p. 106).

At the threshold stage, the trial judge must decide on the availability of competing explanations (substantive reliability) and whether the trier of fact will be in a position to choose between them by means of adequate substitutes for contemporaneous cross-examination (procedural reliability).

For this reason, where procedural reliability is concerned with whether there is a satisfactory basis to rationally evaluate the statement, substantive reliability is concerned with whether the circumstances, and any corroborative evidence, provide a rational basis to reject alternative explanations for the statement, other than the declarant’s truthfulness or accuracy. [ 41 ] In short, in the hearsay context, the difference between threshold and ultimate reliability is qualitative, and not a matter of degree, because the trial judge’s inquiry serves a distinct purpose.

In assessing substantive reliability, the trial judge does not usurp the trier of fact’s role. Only the trier of fact assesses whether the hearsay statement should ultimately be relied on and its probative value. [ 42 ] To preserve the distinction between threshold and ultimate reliability and to prevent the voir dire from overtaking the trial, “[t]here must be a distinction between evidence that is admissible on the voir dire to determine necessity and reliability, and the evidence that is admissible in the main trial” (Stewart, at p. 111; see also L.

Lacelle, “The Role of Corroborating Evidence in Assessing the Reliability of Hearsay Statements for Substantive Purposes” (1999), 19 C.R. (5th) 376 ; Blackman , at paras. 54-57). As Charron J. explained in Khelawon , “the trial judge must remain mindful of the limited role that he or she plays in determining admissibility — it is crucial to the integrity of the fact-finding process that the question of ultimate reliability not be pre-determined on the admissibility voir dire ” (para. 93). Similarly, she noted in Blackman : “The admissibility voir dire must remain focused on the hearsay evidence in question.

It is not intended, and cannot be allowed by trial judges, to become a full trial on the merits” (para. 57). Limiting the use of corroborative evidence as a basis for admitting hearsay also mitigates the risk that inculpatory hearsay will be admitted simply because evidence of the accused’s guilt is strong. The stronger the case against the accused, the easier it would be to admit flawed and unreliable hearsay against him.

The limited inquiry into corroborative evidence flows from the fact that, at the threshold reliability stage, corroborative evidence is used in a manner that is qualitatively distinct from the manner in which the trier of fact uses it to assess the statement’s ultimate reliability. As Lederman, Bryant and Fuerst explain, at the threshold reliability stage, [t]he use of corroborative evidence should be directed to the reliability of the hearsay. Certain items of evidence can take on a corroborative character and be supportive of the Crown’s theory when considered in the context of the evidence as a whole.

Such evidence relates to the merits of the case rather than to the limited focus of the voir dire in assessing the trustworthiness of the statement and is properly left to the ultimate trier of fact. (S. N. Lederman, A. W. Bryant and M. K. Fuerst, The Law of Evidence in Canada (4th ed. 2014), at §6.140) [ 43 ] Thus, the Crown’s argument that the approach to corroboration when assessing the ultimate reliability of Vetrovec testimony is analogous to the approach for assessing the threshold reliability of hearsay is also fundamentally flawed.

Further, an unsavoury witness, unlike a hearsay declarant, is a witness at trial and can be cross-examined. The particular dangers posed by the absence of cross-examination make it necessary to distinguish between the Vetrovec and hearsay approaches to corroborative evidence. As a result, I do not accept the Crown’s submissions in this regard.

[44] In my view, the rationale for the rule against hearsay and the jurisprudence of this Court make clear that not allevidence that corroborates the declarant’s credibility, the accused’s guilt, or one party’s theory of the case, is of assistance in assessingthreshold reliability. A trial judge can only rely on corroborative evidence to establish threshold reliability if it shows, when consideredas a whole and in the circumstances of the case, that the only likely explanation for the hearsay statement is the declarant’s truthfulnessabout, or the accuracy of, the material aspects of the statement.

If the hearsay danger relates to the declarant’s sincerity, truthfulness willbe the issue. If the hearsay danger is memory, narration, or perception, accuracy will be the issue. [45] First, corroborative evidence must go to the truthfulness or accuracy of the material aspects of the hearsay statement(see Couture, at paras. 83-84; Blackman, at para. 57). Hearsay is tendered for the truth of its contents and corroborative evidence must goto the truthfulness or accuracy of the content of the hearsay statement that the moving party seeks to rely on.

Because threshold reliability is about admissibility of evidence, the focus must be on the aspect of the statement that is tendered for its truth.[2] The functionof corroborative evidence at the threshold reliability stage is to mitigate the need for cross-examination, not generally, but on the pointthat the hearsay is tendered to prove. [46] A similar approach was taken in restricting the type of corroborative evidence that can be relied on to establish thethreshold reliability of Mr. Big statements.

In Hart, Moldaver J. (writing for the majority) concluded that there was a “complete lack ofconfirmatory evidence” (para. 143), disregarding corroborative evidence that merely confirmed the accused’s presence at the scene ofthe crime when it took place, because the Mr. Big statement was tendered to show that the accused killed his daughters, not that he waspresent at the scene of the crime. As Moldaver J. explained: The issue has always been whether the respondent’s daughters drowned accidentally or were murdered. There was never any questionthat the respondent was present when his daughters entered the water.

All of the objectively verifiable details of the respondent’sconfession (e.g., his knowledge of the location of the drowning) flow from his acknowledged presence at the time the drowningoccurred. [para. 143] Thus, in assessing the threshold reliability of Mr. Big statements, the trial judge considers only corroborative evidence that goes to thetruthfulness or accuracy of the material aspects of the statement. [47] Second, at the threshold reliability stage, corroborative evidence must work in conjunction with the circumstances toovercome the specific hearsay dangers raised by the tendered statement.

When assessing the admissibility of hearsay evidence, “thescope of the inquiry must be tailored to the particular dangers presented by the evidence and limited to determining the evidentiaryquestion of admissibility” (Khelawon, at para. 4). Thus, to overcome the hearsay dangers and establish substantive reliability,corroborative evidence must show that the material aspects of the statement are unlikely to change under cross-examination (Khelawon,at para. 107; Smith, at p. 937).

Corroborative evidence does so if its combined effect, when considered in the circumstances of the case,shows that the only likely explanation for the hearsay statement is the declarant’s truthfulness about, or the accuracy of, the materialaspects of the statement (see U. (F.J.), at para. 40).

Otherwise, alternative explanations for the statement that could have been elicited orprobed through cross-examination, and the hearsay dangers, persist. [48] In assessing substantive reliability, the trial judge must therefore identify alternative, even speculative, explanationsfor the hearsay statement (Smith, at pp. 936-37). Corroborative evidence is of assistance in establishing substantive reliability if it showsthat these alternative explanations are unavailable, if it “eliminate[s] the hypotheses that cause suspicion” (S.

Akhtar, “Hearsay: TheDenial of Confirmation” (2005), 26 C.R. (6th) 46, at p. 56 (emphasis deleted)). In contrast, corroborative evidence that is “equallyconsistent” with the truthfulness and accuracy of the statement as well as another hypothesis is of no assistance (R. v. R. (D.), (SCC), [1996] 2 S.C.R. 291, at paras. 34-35).

Adding evidence that is supportive of the truth of the statement, but that is alsoconsistent with alternative explanations, does not add to the statement’s inherent trustworthiness. [49] While the declarant’s truthfulness or accuracy must be more likely than any of the alternative explanations, this isnot sufficient.

Rather, the fact that the threshold reliability analysis takes place on a balance of probabilities means that, based on thecircumstances and any evidence led on voir dire, the trial judge must be able to rule out any plausible alternative explanations on abalance of probabilities. [50] To be relied on for the purpose of rejecting alternative hypotheses for the statement, corroborative evidence mustitself be trustworthy. Untrustworthy corroborative evidence is therefore not relevant to the substantive reliability inquiry (see Khelawon,at para. 108).

Trustworthiness concerns are particularly acute when the corroborative evidence is a statement, rather than physicalevidence (see Lacelle, at p. 390). [51] The jurisprudence of this Court provides two examples of corroborative evidence that could be relied on to establishthreshold reliability. [52] In R. v. Khan, (SCC), [1990] 2 S.C.R. 531, this Court held that a hearsay statement from a childregarding a sexual assault was admissible, notably because it was corroborated by a semen stain on the child’s clothes (p. 548). The childalleged that she had been sexually assaulted at the doctor’s office.

She was only alone in the office for a brief period and “did not comeinto contact with any other male person during [that] period” (p. 534). Given the semen stain and the circumstances of the case, the onlylikely hypothesis was that the child had not lied about or misperceived the assault. The semen stain directly responded to the hearsaydangers. [53] Khan can be contrasted with R. (D.), where this Court held that a child’s hearsay regarding a sexual assault by herfather was inadmissible, although there was evidence that supported her statement: bloodstained underpants.

This corroborative evidencewas consistent with more than one hypothesis, both the possibility that her brother had assaulted her and the possibility that her fatherhad assaulted her, and thus was of no assistance in assessing threshold reliability (paras. 34-35). [54] In U. (F.J.), a hearsay statement was admissible in part because it was corroborated by a strikingly similar statement.The strikingly similar statement was capable of supporting the threshold reliability of the hearsay statement because the Court was able

to rule out the possibilities that the similarity was purely coincidental, that the second declarant had heard the first statement and modeled her statement off of it, and that either statement was the result of collusion or outside influence. Importantly, Lamer C.J. was concerned with rejecting, not the hypothesis that the second statement was in fact based on the first, but the possibility that it could have been based on the first.

He concluded that the only likely explanation for the similarity between the two statements was the truthfulness of the hearsay declarant ( U. (F.J.) , at paras. 40 and 53 ). [ 55 ] In contrast, the corroborative evidence in Khelawon , bruises and garbage bags filled with clothes, was not capable of bolstering the threshold reliability of a hearsay statement regarding an assault. Charron J. explained that the bruises on the complainant’s body could have been caused by a fall rather than an assault.

And while the complainant had alleged that the accused had put his clothes in garbage bags, Charron J. reasoned that the complainant “could have filled those bags himself” (para. 107). Given that the corroborative evidence was consistent with many hypotheses, it did not show that the only likely explanation was the declarant’s truthfulness about the assault. [ 56 ] Clarifying when corroborative evidence can be relied on to establish substantive reliability is not a departure from the functional approach to the admissibility of hearsay.

There is no bright-line rule restricting the type of corroborative evidence that a trial judge can rely on to determine that substantive reliability is established.

In all cases, the trial judge must consider the specific hearsay dangers raised by the statement, the corroborative evidence as a whole, and the circumstances of the case, to determine whether the corroborative evidence (if any) can be relied on to establish substantive reliability. [ 57 ] In sum, 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. [ 58 ] With these principles in mind, I now turn to the trial judge’s assessment of the threshold reliability of the re- enactment statement.

B. Application [ 59 ] In concluding that the threshold reliability of the re-enactment statement was established, the trial judge relied on the fact that the statement was: (1) voluntary; (2) incriminating; (3) made after Thielen received legal advice; (4) a detailed, free-flowing narrative; and (5) corroborated by extrinsic evidence.

As a result, he was satisfied that threshold reliability was established. [ 60 ] I conclude that the trial judge erred in relying significantly on corroborative evidence that did not show, in the circumstances of the case, that the only likely explanation was Thielen’s truthfulness about the material aspect of the re-enactment statement. Given this error, the trial judge’s admissibility ruling is not entitled to deference. This Court must therefore determine whether the hearsay re-enactment statement meets the reliability threshold. I conclude that it does not.

(1) The Trial Judge’s Reliance on Corroborative Evidence [ 61 ] The trial judge relied significantly on the existence of corroborative evidence to find that the re-enactment statement was admissible.

In particular, he relied on • forensic evidence that corroborated Thielen’s detailed description of the murders (para. 45); • Thielen’s accurate description of the weather on the nights of the murders (para. 46); • evidence of a conversation between Bontkes and Motola on the night Bontkes died (para. 47) (Motola was a third accomplice in Bontkes’s death and pled guilty to manslaughter in separate proceedings.); • evidence that Bradshaw may have been present when Motola and Thielen discussed their plan to kill Bontkes (para. 52); • call records between one of the murder victims and Bradshaw on the night of one of the murders, and between Thielen and Bradshaw on the night of the other murder (para. 51); and • Bradshaw’s admissions at the Best Western and Bothwell Park (paras. 48-49).

[62] As I shall explain, this corroborative evidence is of no assistance in the threshold reliability inquiry. [63] The first step in assessing the substantive reliability of a hearsay statement is identifying the material aspects of thestatement. The re-enactment statement was tendered for the truth of Thielen’s claim that Bradshaw participated in the murders.

Given thepurpose for which the statement was tendered, the material aspect of the statement was Thielen’s assertion that Bradshaw participated inthe murders. [64] As to the specific hearsay dangers presented by the statement, a number of common hearsay dangers were not inplay in this case. The accuracy of the statement is not at issue because it was video-recorded.

While the difficulties of investigating ahearsay declarant’s perception and memory are often dangers associated with hearsay evidence, these dangers are minimal in this casebecause the statement was not tendered to provide details of how the murders unfolded, but rather to prove that Bradshaw participated inthe murders.

It is hardly plausible that Thielen would have been mistaken — or wrongly remembered — whether Bradshaw participatedin the murders. [65] Therefore, the specific hearsay danger presented by the re-enactment statement is the difficulty of testing Thielen’ssincerity with regards to Bradshaw’s participation in the murders. This danger is inherent in all hearsay statements due to the inability totest for and detect the hearsay declarant’s insincerity through contemporaneous, in-court cross-examination.

Additionally, in this case,there are serious reasons to be concerned that Thielen lied about Bradshaw’s participation in the murders. [66] First, Thielen gave inconsistent statements about Bradshaw’s participation in the murders. In May 2010, Thielen toldCst. B. that he shot Lamoureux and Bontkes, and he did not implicate Bradshaw. When he met with the crime boss in July, Thielenimplicated Bradshaw in the murders. When he was arrested, Thielen initially denied his own involvement in both murders. After thepolice told Thielen that he had been the target of a Mr.

Big operation, he admitted that he had been involved in the murders and heimplicated Bradshaw. [67] Second, Thielen had a significant motive to lie about Bradshaw’s participation in the murders. Like the hearsaydeclarant in Youvarajah, Thielen “had a strong incentive to minimize his role in the crime and to shift responsibility” to his accomplice(para. 33). Thielen had a motive to implicate Bradshaw to reduce his own culpability, particularly given his admissions to Cst. B.Although Thielen was charged with the first degree murder of Lamoureux and Bontkes, he ultimately pled guilty to second degreemurder.

Thielen’s motive to lie is relevant in assessing the reliability of his hearsay statement (Blackman, at para. 42). [68] Third, Thielen was a Vetrovec witness. In the trial judge’s words: . . . there is already considerable evidence of Mr. Thielen’s unsavoury character before the jury. He has been described by a number ofwitnesses as a drug dealer, a thug, an enforcer and a murderer. He is clearly a person about whom a strong Vetrovec warning isappropriate. [para. 60 ] [69] Given that a Vetrovec witness cannot be trusted to tell the truth, even under oath (R. v.

Khela, 2009 SCC 4, [2009] 1S.C.R. 104, at para. 3), establishing that hearsay evidence from a Vetrovec witness is inherently trustworthy will be extremelychallenging. However, there is no blanket prohibition on admitting hearsay from Vetrovec witnesses. In all cases, the trial judge mustassess whether the hearsay dangers have been overcome.

That said, the strong Vetrovec warning indicates that the dangers presented bythe hearsay statement here are particularly severe. [70] The third step in assessing a hearsay statement’s substantive reliability is considering alternative explanations for thehearsay statement that arise from the particular circumstances of the case.

Given the hearsay dangers presented by the re-enactmentstatement, an alternative explanation is that Thielen lied about Bradshaw’s participation in the murders. [71] With this in mind, corroborative evidence will only assist in establishing the substantive reliability of the re-enactment statement if it shows, when considered in the circumstances of the case, that the only likely explanation is that Thielen wastruthful about Bradshaw’s involvement in the murders.

When the hearsay danger is sincerity, substantive reliability is only establishedwhen the circumstances and corroborative evidence show that the possibility that the declarant lied is substantially negated, that “even asceptical caution would look upon [the statement] as trustworthy” (Wigmore, at p. 154; Khelawon, at para. 62; Couture, at para. 101).Corroborative evidence or circumstances showing that the statement is inherently trustworthy are required to rebut the presumption ofinadmissibility. [72] The forensic evidence, weather evidence, and evidence of a conversation between Bontkes and Motola did notimplicate Bradshaw in the murders.

This evidence is of no assistance in determining whether Thielen was being truthful aboutBradshaw’s involvement in the murders. The fact that Thielen accurately described the way the murders unfolded and the weather on thenights of the murders does not mitigate the danger that he lied about Bradshaw’s participation. As an accomplice, Thielen was present atthe scenes of the crimes and was well positioned to fabricate a story implicating Bradshaw (see R. v. Smith, 2009 SCC 5, [2009] 1 S.C.R.146, at para. 15; R. v.

Salah, 2015 ONCA 23, 319 C.C.C. (3d) 373, at para. 116). [73] The remaining corroborative evidence relied on by the trial judge was probative of Bradshaw’s involvement in themurders. It will be for the trier of fact to determine whether or not this evidence increases the likelihood that Bradshaw is guilty. The callrecords show that Bradshaw may have spoken to Lamoureux and Thielen on the evenings in question, and the evidence of Bradshaw’spresence when the plan to kill Bontkes was discussed shows that Bradshaw may have been aware of this plan.

However, this evidence,viewed in the circumstances, did not assist in effectively ruling out the alternative explanation for the re-enactment statement — thedanger that Thielen lied about Bradshaw’s involvement in the murders. [74] Finally, the recorded conversations at the Best Western Hotel and Bothwell Park provide direct evidence ofBradshaw’s involvement in the murders. However, as I shall explain, there are concerns about the trustworthiness of these statements.

Asmentioned above, corroborative evidence must itself be trustworthy to be relied on to establish the threshold reliability of a hearsaystatement (see Khelawon, at para. 108).

[ 75 ] When Thielen was the target of a Mr. Big operation, undercover officers encouraged him to meet up with Bradshaw to clarify their respective roles in the murders. On July 21, 2010, Thielen and Bradshaw met in a room at the Best Western Hotel. Their conversation was recorded. The first eight minutes of the recorded conversation are inaudible because Bradshaw and Thielen were in the bathroom, while the tap was running. Cst. B. called Thielen to get him to leave the bathroom so the conversation could be captured.

Once Bradshaw and Thielen moved into the main room, Bradshaw said that he had shot Bontkes and participated in both murders. [ 76 ] A few days later, Thielen and Bradshaw met at Bothwell Park. Their conversation was recorded again.

During their meeting, Bradshaw discussed their unsuccessful attempt to kill Bontkes, before Bontkes was actually murdered in March 2009. [ 77 ] While this evidence provides some evidence of guilt, it does not assist, for several reasons, in effectively ruling out the possibility that Thielen lied about Bradshaw’s involvement in the murders. [ 78 ] The Best Western and Bothwell Park evidence was collected in a Mr. Big operation. Undercover officers were orchestrating the circumstances to obtain an admission from Thielen and then from Bradshaw.

As the trial judge explained, the Best Western and Bothwell Park “meetings were set up by Constable B. with Mr. Thielen’s cooperation, during the course of the Mr. Big operation, in an endeavour to elicit evidence of Mr. Bradshaw’s possible participation in the murders of Ms. Lamoureux and Mr. Bontkes” (para. 43). Indeed, Cst. B. explained that he “wanted Mr. Thielen to get . . . the truth from Mr. Bradshaw” (examination in chief, A.R., vol. V, at p. 134) and that he gave Thielen instructions on what was required during his conversation with Bradshaw at the Best Western Hotel. [ 79 ] In Mr.

Big operations, parties believe they are dealing with a criminal organization. They are often induced and threatened. As this Court noted in Hart : “Suspects confess to Mr. Big during pointed interrogations in the face of powerful inducements and sometimes veiled threats — and this raises the spectre of unreliable confessions” (para. 5). The Mr.

Big operation raises concerns about Thielen’s motivation and role in these conversations, and the trustworthiness of Bradshaw’s statements at the Best Western and Bothwell Park. [ 80 ] As well, the initial part of the Best Western conversation was inaudible because Thielen and Bradshaw were in the bathroom and a tap was running. This raises questions about what followed. As I have said, the trial judge is required to consider alternative, even speculative, explanations that could account for the hearsay statement ( Smith (1992), at pp. 936-37).

Indeed, while this evidence was not before the trial judge at the time of his ruling, Bradshaw subsequently testified that, while the tap was running, Thielen asked him to lie and say that he had been involved in Lamoureux and Bontkes’s murders. [ 81 ] Furthermore, in the Bothwell Park conversation, Bradshaw primarily implicated himself in the attempted murder of Bontkes, rather than in Bontkes’s actual murder. [ 82 ] Of course, as the accused’s admissions, the recording of Bradshaw’s own words are admissible against him quite independently of whether Thielen’s re-enactment video is admitted.

Indeed, Bradshaw’s admissions at the Best Western and Bothwell Park were admitted into evidence for the jury’s consideration. That is not challenged on appeal. [ 83 ] However, these admissions are not of such a nature to justify the admission of Thielen’s highly suspect hearsay statements implicating Bradshaw. They do not, when considered in the circumstances and with the other evidence led at the voir dire , “substantially negate the possibility that the [hearsay] declarant was untruthful” about Bradshaw’s involvement in the murders ( Smith (1992), at p. 933).

Bradshaw’s Best Western admission does not, in the circumstances, demonstrate that Thielen’s statement would be unlikely to change under cross-examination ( Khelawon , at para. 107 ; Smith (1992), at p. 937). [ 84 ] In U. (F.J.) , this Court held that “instances of statements so strikingly similar as to bolster their reliability will be rare” (para. 45).

Lamer C.J. explained that a similar statement cannot bolster the reliability of a hearsay statement unless it is unlikely that “[t]he second declarant knew of the contents of the first statement, and based his or her statement in whole or in part on this knowledge” and unlikely that the similarity is due to outside influence (para. 40). Thielen was present for Bradshaw’s Best Western and Bothwell Park admissions, and could have based his re-enactment statement on this knowledge. Furthermore, outside influence cannot be rejected as a possible explanation for Bradshaw’s Best Western and Bothwell Park admissions.

Indeed, according to Cst. B.’s testimony, he played a role in orchestrating the admissions. The Best Western and Bothwell Park statements were therefore of no assistance in establishing the inherent trustworthiness of the re-enactment statement. [ 85 ] The evidence led at the admissibility voir dire as corroborative of Thielen’s statement is unlike the semen stain in Khan , or the strikingly similar statement in U. (F.J.) .

When considered in the circumstances of the case, this evidence does not show that the only likely explanation for the statement was Thielen’s truthfulness about Bradshaw’s involvement in the murders. Taken as a whole, this evidence therefore did not assist in establishing threshold reliability. While much of the evidence relied on by the trial judge was probative of Bradshaw’s guilt, and thus could be considered by the trier of fact in the trial on the merits, none of it was of assistance in establishing the threshold reliability of the re-enactment statement.

Furthermore, as noted above, the evidence and circumstances here showed that there were serious reasons to be concerned that Thielen lied.

(2) Threshold Reliability of the Re-enactment Statement [ 86 ] Given the trial judge’s flawed approach to corroborative evidence, this Court must determine whether the threshold reliability of the hearsay re-enactment statement is nonetheless established. Are the serious hearsay dangers presented by the re- enactment statement overcome? [ 87 ] To respect the role of the trier of fact in assessing trustworthiness, I consider first the statement’s procedural reliability ( Khelawon , at para. 92 ).

There were few means for the trier of fact to determine whether Thielen lied about Bradshaw’s participation in the murders. While the accuracy of the reporting of the statement is not at issue in this case because it was video-taped, Thielen was not cross-examined at the time the statement was taken or subsequently. Thielen’s statement was not taken under oath and he was not warned of the consequences of lying before the statement was taken. Most importantly, he was not available to be cross- examined at trial.

The trier of fact evidently did not possess a “sufficient substitute basis for testing the evidence” in the absence of cross-

examination ( Khelawon , at para. 105 ). [ 88 ] The trial judge considered “possible safeguards that [could] be put in place by the Crown and the court to overcome [the hearsay] dangers” (para. 19). He explained that Thielen’s inconsistencies could be put into evidence and that the Crown had agreed to call the police officers to whom Thielen gave the different statements, in order to allow the defence to cross-examine them on these inconsistencies (para. 59).

He also noted that a strong Vetrovec warning would be given (para. 60). [ 89 ] Putting Thielen’s inconsistencies into evidence did not provide the jury with a sufficient substitute basis for evaluating the truth of the re-enactment statement. And while cross-examining the recipient of a hearsay statement may be helpful if there are concerns about the recipient’s credibility or reliability ( Blackman , at para. 50), there were no such concerns in this case.

As the Criminal Lawyers’ Association of Ontario (an intervener) notes, “where there is no doubt about what was actually said or under what circumstances — if the statement is video-taped, for instance — then cross-examination of the recipient does nothing to help assess whether the content of the hearsay is true” (I.F., at para. 32 (emphasis in original)). Furthermore, as explained above, jury warnings about the dangers of hearsay evidence and Vetrovec testimony do little to support the statement’s procedural reliability. Jury warnings do not provide an adequate substitute for the traditional safeguards.

They are no substitute for other conditions of admissibility.

Rules of evidence, such as the rule against hearsay, protect trial fairness and the integrity of the trial process by deeming certain types of evidence presumptively inadmissible. [ 90 ] Because there were few tools available for testing the truth and accuracy of the re-enactment statement, it could only be admitted if the circumstances in which it was made and corroborative evidence, if any, “substantially negate[d] the possibility that the declarant was untruthful” ( Smith (1992), at p. 933). [ 91 ] The trial judge found that the statement was reliable because it was voluntary, made after Thielen had received legal advice, and was a “free-flowing narrativ[e]”.

He also relied on the fact that it was incriminating. He reasoned that Thielen put himself at risk, even in the prison system, by implicating himself and others in the murders (para. 40). [ 92 ] However, these circumstances “while relevant, in essence simply point to an absence of factors that, if present, would detract from an otherwise trustworthy statement” ( Couture , at para. 101 ). They do not provide a circumstantial guarantee of trustworthiness.

Furthermore, while Thielen incriminated himself in the murders in the re-enactment video, he had already done so in his statements to police following his arrest, and during the Mr. Big operation. And while he may have put himself at risk in the prison system by implicating Bradshaw, he nonetheless benefited from the opportunity of reduced criminal liability: he pled guilty to the lesser charge of second degree murder. Thielen clearly had a significant motive to lie about Bradshaw’s involvement in the murders.

The Court of Appeal rightfully noted that “[t]he [trial] judge did not sufficiently address the issues that would detract from the truthfulness of Mr. Thielen’s statements, including his considerable motive to lie to extricate himself from his admissions to Cst.

B. that he committed first degree murder, not once, but twice” (para. 37). [ 93 ] Finally, as discussed above, the corroborative evidence relied on by the trial judge was of no assistance in establishing threshold reliability. [ 94 ] The hearsay danger raised by the re-enactment evidence, namely the inability to investigate Thielen’s sincerity about Bradshaw’s participation, is particularly difficult to overcome in this case. Thielen had a motive to lie about Bradshaw’s involvement in the murders and he initially did not implicate Bradshaw in the murders.

Thielen is also a Vetrovec witness, a witness who cannot be trusted due to his unsavoury character. There are few tools available to the trier of fact to test Thielen’s sincerity. The circumstances in which the statement came about, and the evidence led at the voir dire , do not substantially negate the possibility that Thielen lied about Bradshaw’s participation in the murders. [ 95 ] This is not a case where the hearsay “presents minimal dangers and its exclusion , rather than its admission, would impede accurate fact finding” ( Khelawon , at para. 2 (emphasis in original)).

Rather, admitting the re-enactment statement would undermine the truth-seeking process and trial fairness. Hearsay is presumptively inadmissible and the trial judge erred in finding that this presumption was rebutted. V. Conclusion [ 96 ] I conclude that the trial judge erred in admitting the re-enactment statement into evidence. The Crown failed to establish the threshold reliability of this statement on a balance of probabilities. [ 97 ] I would dismiss the appeal. I agree with the British Columbia Court of Appeal that the convictions be set aside and a new trial ordered.

The reasons of Moldaver and Côté JJ. were delivered by Moldaver J . (dissenting) — I. Overview [ 98 ] At issue in this appeal is the admissibility of a video re-enactment [3] of the events surrounding the murders of Laura Lamoureux and Marc Bontkes in March 2009. In the re-enactment, which occurred in August 2010, some 17 months after the murders, Roy Thielen describes for the police how he and the respondent, Robert Bradshaw, carried out the murders together. After Mr. Thielen refused to testify at Mr.

Bradshaw’s trial, the trial judge admitted the re-enactment under the principled approach to hearsay evidence. [ 99 ] My colleague, Karakatsanis J., concludes that the trial judge erred in doing so. She reaches this conclusion on the basis of a restrictive new test that departs from the functional approach to threshold reliability which this Court has endorsed in its modern jurisprudence.

[100] With respect, I disagree with my colleague’s approach and her conclusion. I acknowledge that Mr. Thielen’s re-enactment was not problem-free and that hearsay dangers are generally more pronounced when a declarant is not available to be cross-examined. However, this was an unusual case, in that there was exceptionally powerful corroborative evidence, including surreptitiouslyrecorded conversations in which Mr. Bradshaw admitted his involvement in the two murders.

In addition, the trial judge adopted anumber of procedural safeguards which placed the jury in a position to critically evaluate the impugned evidence. These included thelimited admission of prior inconsistent statements taken by police officers along with the opportunity to cross-examine them, strictcautionary instructions to the jury and wide latitude given to defence counsel to canvass the same points in his closing submissions thathe would have canvassed had he been able to cross-examine Mr.

Thielen. [101] In conjunction, these factors — powerful corroborative evidence and procedural safeguards — were capable ofsatisfying the test for threshold reliability. The principled approach to hearsay should not stand in the way of the truth-seeking functionof a trial where the impugned evidence is shown to be trustworthy and the jury has the tools it needs to critically evaluate its ultimatereliability. This was the conclusion of the trial judge, who was uniquely positioned to make this determination. In my view, his rulingadmitting the video re-enactment was amply supported by the record and error-free.

I see no basis in fact or law to interfere with it. [102] The trial judge’s decision to reject a defence application to tender another hearsay statement by Mr. Thielen which didnot implicate Mr. Bradshaw is also entitled to deference. I would uphold it. [103] Accordingly, I would allow the appeal, set aside the judgment of the British Columbia Court of Appeal ordering a newtrial and restore Mr. Bradshaw’s convictions for the first degree murders of Ms. Lamoureux and Mr. Bontkes. II. Analysis [104] The modern approach governing the admissibility of hearsay evidence is the principled approach.

Under thisapproach, hearsay evidence can be admitted where it is necessary and where it meets the test for threshold reliability. It is uncontestedthat Mr. Thielen’s refusal to testify at trial satisfies the necessity criterion. The focus of this appeal is on whether Mr. Thielen’s re-enactment meets the test for threshold reliability. The Test for Threshold Reliability [105] Hearsay evidence is presumptively inadmissible primarily because of the difficulty in testing its reliability.

There isalways a risk that a witness may misperceive the facts, wrongly remember them, narrate events in a misleading or incomplete manner, ormake an intentionally false assertio

[…]