Supreme Court of Canada
SUPREME COURT OF CANADA
Appeal Heard: January 18, 2024 Judgment Rendered: September 25, 2024 Docket: 40319
Between: Yves Caleb Jr. Charles Appellant and His Majesty The King Respondent
Official English Translation
Coram: Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal and Moreau JJ.
Reasons for Judgment: (paras. 1 to 80) Moreau J. (Karakatsanis, Martin and Jamal JJ. concurring)
Joint Dissenting Reasons: (paras. 81 to 109) Côté and Kasirer JJ. (Rowe J. concurring)
Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.
Parties
Yves Caleb Jr. Charles Appellant
v.
His Majesty The King Respondent
Indexed as: R. v. Charles
2024 SCC 29
File No.: 40319.
2024: January 18; 2024: September 25.
Present: Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal and Moreau JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
Headnote
Criminal law — Evidence — Admissibility — Hearsay — Principled exception to hearsay rule — Trial judge admitting witness's out‑of‑court statement into evidence — Whether statement could be admitted into evidence under principled exception to rule against hearsay.
Following an incident involving the accused and the complainant at the school they attended, the accused was charged with assault with a weapon, using an imitation firearm in the commission of an assault, and uttering threats. At trial, the complainant testified that he had entered a washroom at the school and had felt something on his hip while washing his hands. When he turned around, he saw that it was a pistol being held by the accused, used to threaten him. Two other students were present at the time. One of them, whom the Crown called as a witness at the accused's trial, claimed on being questioned that he had no recollection of the events. The Crown therefore requested a voir dire, seeking to admit into evidence an out‑of‑court statement that had been given by that witness to the police investigators the day after the events. Accompanied at the time by his mother, the witness, who had been arrested and taken into custody in connection with the same incident, was questioned by the police investigators for about an hour and provided a statement in writing. Among other things, the witness admitted in his statement that he was in possession of two pellet pistols. The police conducted a search and recovered the pistols at the witness's residence, in the location indicated in his statement.
The trial judge admitted the witness's out‑of‑court statement into evidence. He found that the only likely explanation for the statement was its truthfulness as to its material aspects, given the circumstances in which the statement was made and the seizure of pistols, which the trial judge considered to be corroborative evidence. Following the trial, the accused was found guilty of the three counts. The trial judge accepted the complainant's version of events, which was supported for the most part by a surveillance video and the witness's statement. A majority of the Court of Appeal upheld the trial judge's decision to admit the statement into evidence and dismissed the accused's appeal from his convictions. In addition to being of the view that the trial judge's conclusion was justified, the majority pointed out the striking similarity between the complainant's testimony and the witness's statement, which, according to the majority, tended to confirm that the statement was sufficiently reliable.
Held (Côté, Rowe and Kasirer JJ. dissenting): The appeal should be allowed, the convictions quashed and a new trial ordered.
Per Karakatsanis, Martin, Jamal and Moreau JJ.: The trial judge erred in finding that the witness's out‑of‑court statement had the required indicia of reliability and in admitting the statement into evidence at trial. The results of the search subsequently conducted at the witness's residence do not meet the criteria for corroborative evidence set out in R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865. Moreover, the circumstances surrounding the statement do not support a finding that threshold reliability is established. Finally, 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 the witness's statement.
Hearsay evidence is presumptively inadmissible. 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. At the threshold reliability stage, 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. In the absence of a connection between the corroborative evidence and the aspect sought to be proved, 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. The combined effect of the corroborative evidence and the circumstances of the case, not the evidence taken in isolation, must rule out plausible alternative explanations for the material aspects of the statement. The absence of leading questions, inconsistent statements, promises of benefit or a criminal lifestyle simply points to an absence of factors that, if present, would detract from an otherwise trustworthy statement.
In this case, the Crown was required to show that the search results confirmed the accused's role in the events if it was seeking to use the witness's statement to establish the accused's degree of involvement as well as the use of the weapon. There is no connection between the discovery of the pistols and the accused's degree of involvement. 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.
In addition, the witness's statement raises particular reliability concerns. Because the witness is an accomplice, there is a very real danger that he tried to shift his responsibility onto the accused in his statement. It was to the witness's advantage to provide an account that limited his participation to possession of the weapons, avoiding the charges that involved a greater degree of participation. In the absence of external evidence confirming that the accused played the primary role in the washroom, the circumstantial guarantees cannot overcome the dangers presented by the witness's statement. Indeed, the absence of a criminal lifestyle is not at all clear. Moreover, the presence of the witness's mother is not actually an indicium of reliability, because it is possible that the witness did not want his mother to know his degree of involvement, which could have motivated him to lie. The temporal proximity between the statement and the events is also not a useful factor in assessing the specific danger raised by the statement, namely, that the witness lied. Lastly, the witness's consultation with counsel does not make it possible to exclude the risk that he tried to minimize his responsibility. Nor are the indicia of procedural reliability reassuring, because the usual substitutes for the traditional safeguards are absent: there was no recording of the statement or the interview that preceded it, the witness was not under oath and was not given a warning by the investigators concerning the need to tell them the truth and the consequences associated with lying, and the defence was deprived of any opportunity to cross‑examine the witness. In short, the combined effect of the corroborative evidence and the circumstances does not overcome the specific hearsay dangers raised by the out‑of‑court statement.
As for the complainant's testimony, that evidence cannot be considered in analyzing the threshold reliability of the witness's statement. 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. On appeal, the appropriate mechanism for considering the complainant's testimony that was not formally tendered in the voir dire is the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, which cannot be applied in this case because the trial judge's admission of the statement is not a harmless or trivial error and it is not clear that the evidence pointing to the accused's guilt is so overwhelming that any other verdict but a conviction would be impossible.
Per Côté, Rowe and Kasirer (dissenting): The appeal should be dismissed. There is no reviewable error in the trial judge's decision to admit the witness's out‑of‑court statement into evidence under the principled exception to the rule against hearsay. However, there is agreement with the majority that, on appeal, the appropriate mechanism for considering the complainant's testimony is the curative proviso.
The trial judge made no reviewable error in taking the discovery of the weapons into account as corroborative evidence in the assessment of threshold reliability. Given the charges laid and the burden they entailed for the prosecution, there is indeed a logical connection between the aspect of the statement pertaining to the presence of the weapon in the washroom, corroborated by the discovery of the weapon at the witness's residence, and the aspect of the statement pertaining to the handling of that same weapon by the accused at the same time and in the same location. Such a logical connection makes it possible, in the assessment of threshold reliability, to consider corroborative evidence that does not relate to all of the material aspects of a statement. Threshold reliability can be established through the combined effect of the corroborative evidence and the circumstances that constitute indicia of reliability, as those circumstances make remedying the insufficiency of the corroborative evidence possible.
In the absence of an error in principle that tainted the analysis at first instance during the consideration of certain circumstances in the assessment of threshold reliability, the trial judge's decision was owed deference by the Court of Appeal. The relevance of the circumstances depends on the specific dangers associated with the hearsay in question and thus on the facts of the case. It would be wrong to categorize, objectively and independently of the facts of the case, the circumstances that are neutral or secondary and those that are more important. It is true that circumstances that in essence simply point to an absence of factors that, if present, would detract from an otherwise trustworthy statement do not provide a circumstantial guarantee of trustworthiness. However, those circumstances are relevant. While such circumstances are not sufficient on their own to establish threshold reliability, such circumstances considered in conjunction with others (for example, corroboration even insufficient on its own), may lead to the conclusion that the statement has all the attributes required for acceptable threshold reliability. The fact that the witness spoke with counsel, the fact that his mother accompanied him when he made his statement and the fact that his mother was made aware of the tenor of the witness's rights are indicia of reliability that the trial judge could validly consider.
Cases Cited
By Moreau J.
Applied: R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865; referred to: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787; R. v. Conway (1997), 36 O.R. (3d) 579; R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720; R. v. B. (K.G.), [1993] 1 S.C.R. 740; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144; R. v. Mohamed, 2023 ONCA 104, 423 C.C.C. (3d) 308; R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517; R. v. L.T.H., 2008 SCC 49, [2008] 2 S.C.R. 739; R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823.
By Côté and Kasirer JJ. (dissenting)
R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692; 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. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865; R. v. Hall, 2018 MBCA 122, [2019] 1 W.W.R. 612; R. v. Burns, 2016 SKCA 67, 337 C.C.C. (3d) 523; R. v. Allary, 2021 SKCA 110; R. v. U. (F.J.), [1995] 3 S.C.R. 764; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787; R. v. Khan, [1990] 2 S.C.R. 531; R. v. Larue, 2018 YKCA 9, 434 D.L.R. (4th) 155, aff'd 2019 SCC 25, [2019] 2 S.C.R. 398; R. v. Bernard, 2018 ABCA 396, 80 Alta. L.R. (6th) 258; R. v. L.T.H., 2008 SCC 49, [2008] 2 S.C.R. 739.
Statutes and Regulations Cited
Canada Evidence Act, R.S.C. 1985, c. C‑5, s. 9(2).
Criminal Code, R.S.C. 1985, c. C‑46, s. 686(1)(b)(iii).
Authors Cited
Lederman, Sidney N., Michelle K. Fuerst and Hamish C. Stewart. Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 6th ed. Toronto: LexisNexis, 2022.
Paciocco, David M., Palma Paciocco and Lee Stuesser. The Law of Evidence, 8th ed. Toronto: Irwin Law, 2020.
APPEAL from a judgment of the Quebec Court of Appeal (Doyon, Cournoyer and Bachand JJ.A.), 2022 QCCA 1013, 82 C.R. (7th) 373, [2022] AZ‑51869771, [2022] J.Q. no 7437 (Lexis), 2022 CarswellQue 9888 (WL), affirming the convictions of the accused for assault with a weapon, using an imitation firearm in the commission of an assault and uttering threats. Appeal allowed, Côté, Rowe and Kasirer JJ. dissenting.
Emmanuelle Rheault, for the appellant.
Marianna Ferraro and Mathieu Locas, for the respondent.
Reasons for Judgment
English version of the judgment of Karakatsanis, Martin, Jamal and Moreau JJ. delivered by
Moreau J. —
Table of Contents
| Section | Paragraph |
|---|---|
| I. Overview | 1 |
| II. Facts | 6 |
| III. Decisions of the Courts Below | 18 |
| A. Court of Québec (Judge Dupras) | 18 |
| (1) Voir Dire Ruling | 18 |
| (2) Decision as to Guilt | 23 |
| B. Quebec Court of Appeal, 2022 QCCA 1013, 82 C.R. (7th) 373 | 27 |
| (1) Bachand J.A., Dissenting | 28 |
| (2) Doyon and Cournoyer JJ.A. | 33 |
| IV. Issues | 39 |
| V. Analysis | 41 |
| A. Standard of Review | 41 |
| B. General Principles Concerning the Admissibility of Hearsay Evidence | 43 |
| C. Use of the Search Results in the Threshold Reliability Analysis | 49 |
| D. Threshold Reliability | 64 |
| E. Use of the Complainant's Testimony in the Threshold Reliability Analysis | 76 |
| VI. Conclusion | 80 |
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.
[ 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. Since the complainant had already lost part of a work day, the trial judge decided to adjourn the voir dire in order to allow him to testify. 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.
[ 14 ] The trial judge inquired as to whether all of the trial evidence would be tendered in the voir dire. The parties agreed that the trial judge could consider K.A.'s demeanour while testifying but that the other trial evidence would not be tendered in the voir dire.
[ 15 ] The trial judge admitted K.A.'s out‑of‑court statement into evidence at the trial, but not his guilty plea.
[ 16 ] The appellant testified during the trial that on February 24, 2016, K.A. — a person unknown to him — offered to show him an iPad electronic tablet. The appellant later saw K.A. and another person in the washroom. K.A. showed him the iPad and said that he also had something else to show him. K.A. then took out a firearm. The appellant held it for a few seconds before returning it to K.A. The complainant, who was also in the washroom, asked whether the pistol was "a real one". The appellant answered that it was not; however, the individual with K.A. said that there was still a bullet in it.
[ 17 ] Following the trial, the appellant was found guilty of the three counts.
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.
[ 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
[ 23 ] The trial judge began his analysis by assessing the probative value of K.A.'s statement. He pointed out that there were certain discrepancies between that statement and a surveillance video ("Exhibit P‑6") which showed the individuals concerned in a hallway beside the washroom. Noting that he had not yet viewed Exhibit P‑6 at the time he assessed threshold reliability, the trial judge found [translation] "that once it is placed in the general context of the evidence as a whole, there are elements of [the statement] whose probative value must be adjusted downward" (para. 45, reproduced in A.R., vol. I, at p. 49).
[ 24 ] The trial judge concluded that he did not believe the appellant's version and that it did not raise a reasonable doubt.
[ 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.
[ 26 ] The trial judge therefore convicted the appellant of the three counts and entered a conditional stay of proceedings on the second count.
B. Quebec Court of Appeal, 2022 QCCA 1013, 82 C.R. (7th) 373
[ 27 ] Before the Court of Appeal, the appellant argued that the trial judge had erred in considering the location of the pistols as corroborative evidence and in finding that the circumstances surrounding the statement were sufficient to establish threshold reliability. While the dissenting judge would have allowed the appeal on the basis of those arguments, the majority rejected them. The Court of Appeal unanimously rejected a second argument concerning s. 9(2) of the Canada Evidence Act, R.S.C. 1985, c. C‑5, which the appellant did not pursue before this Court.
(1) Bachand J.A., Dissenting
[ 28 ] Bachand J.A. found that the search results were not relevant in determining whether the statement was admissible to establish the appellant's role in the incident. Corroborative evidence may be used in the analysis of threshold reliability only when that evidence, considered as a whole and in the circumstances of the case, shows that the only likely explanation for the statement is the statement's truthfulness or accuracy regarding its material aspects. In particular, Bachand J.A. cited Karakatsanis J.'s majority reasons in Bradshaw stating that the function of corroborative evidence is to mitigate the need for cross‑examination on the point that the statement is tendered to prove.
[ 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.
[ 30 ] As for the circumstances surrounding the statement, Bachand J.A. determined that they did not provide sufficient guarantees. The trial judge relied on certain circumstances that, in light of the specific hearsay dangers presented by the case, were neutral or of secondary importance. The circumstances relied on by the trial judge were not sufficient to establish threshold reliability.
[ 31 ] With regard to the complainant's testimony, Bachand J.A. pointed out (in a footnote) that it was not part of the evidence relied upon for the purposes of the voir dire.
[ 32 ] Finally, Bachand J.A. found that the curative proviso in s. 686(1)(b)(iii) could not apply.
(2) Doyon and Cournoyer JJ.A.
[ 33 ] The majority dismissed the appeal, finding that the dissenting judge was [translation] "unduly pars[ing] the evidence and the jurisprudence", which resulted in "the negation of the key principle" that it is the combined effect of the corroborative evidence and the circumstances, and not the evidence taken in isolation, that must rule out plausible alternative explanations for the statement.
[ 34 ] The situation differed from that in Bradshaw. Here, K.A. had not made prior inconsistent statements and had participated in a police interview within hours of the incident. His credibility was not compromised by any connection to the accused or any interest in having the accused convicted.
[ 35 ] The majority summarized the evidence concerning the circumstances as follows, at para. 64 of its reasons:
[translation] A young person, who had consulted counsel and who understood the gravity of the situation and his duty to tell the truth because of the caution and the presence of a parent, gave a short, coherent, detailed statement the day after the incident, without a criminal past and without any prior inconsistent statements, which was corroborated by the seizure of the weapon described in the statement.
[ 36 ] Considered as a whole, these factors could justify the trial judge's conclusion.
[ 37 ] The majority was also of the view that K.A. had not shifted his responsibility onto the appellant's shoulders. There was nothing to suggest that K.A. had an interest in making a statement that incriminated the appellant more than it incriminated himself.
[ 38 ] Finally, the majority pointed out the striking similarity between the complainant's testimony and K.A.'s statement. The majority noted that K.A. had not discussed the content of his statement with the complainant before making the statement, which tended to confirm that the statement was sufficiently reliable.
IV. Issues
[ 39 ] The appellant raises only one issue: Did the Quebec Court of Appeal err in law in upholding the decision to admit K.A.'s statement into evidence on the basis of the principled exception to the rule against hearsay?
[ 40 ] The reasons of the majority of the Court of Appeal raise a second issue: Did the majority of the Court of Appeal err in relying on the complainant's testimony to find that the threshold reliability of K.A.'s statement was established?
V. Analysis
A. Standard of Review
[ 41 ] Both issues are subject to a correctness standard. The admissibility of hearsay evidence is a question of law. However, as my colleagues in dissent have correctly noted, an appellate court must show deference to the trial judge's application of the hearsay principles to the facts. A trial judge's findings on threshold reliability should be reviewed on a standard of palpable and overriding error, unless an error in principle is identified (Youvarajah, at para. 31; Bradshaw, at para. 17).
[ 42 ] The question of whether it was open to the majority of the Court of Appeal to rely on the complainant's testimony to find that the threshold reliability of K.A.'s statement was established is a question of law reviewable on a correctness standard.
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 an out‑of‑court statement, because it was not made under oath, before the trier of fact and subject to contemporaneous cross‑examination (Khelawon, at para. 2).
[ 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 recounted, made without personal knowledge, or made with a motive to lie" (Khelawon, at para. 2).
[ 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 the principled exception to the hearsay rule, which allows for the admission of hearsay when the party tendering it demonstrates that the twin criteria of necessity and reliability are met on a balance of probabilities (Bradshaw, at para. 23). Threshold reliability can be established in two ways: through procedural reliability or through substantive reliability (Bradshaw, at para. 27).
[ 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). Examples of procedural substitutes include video recording the statement, having the declarant make it under oath, and warning the declarant about the consequences of lying (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. 30):
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).
[ 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 principled exception strikes a balance between the search for truth and the right of the accused to a fair trial.
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
- identify the material aspects of the hearsay statement that are tendered for their truth;
- identify the specific hearsay dangers raised by those aspects of the statement in the particular circumstances of the case;
- based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement; and
- 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)
[ 50 ] The Crown argues that the seizure of the pistols at the location specified in the statement constitutes extrinsic corroborative evidence that is relevant to establishing the statement's substantive reliability. It submits that K.A.'s statement serves to establish two material aspects: (1) the presence of a weapon in the washroom; and (2) the appellant's role in the events. The discovery of the pistols at K.A.'s residence supports both of these aspects because the two aspects are logically connected. Moreover, the Crown argues, the combined effect of the corroborative evidence and the circumstances of the case rules out the plausible alternative explanations for the material aspects of the statement.
[ 51 ] As for the appellant, he argues that there is no connection between the discovery of the pistols during the search and the aspect of the statement pertaining to his role in the events and that, as a result, this evidence cannot be used to establish the reliability of the statement.
[ 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. or Fares.
[ 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.
[ 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" (Bradshaw, at para. 44 (emphasis added)).
[ 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 mean that evidence with no connection to a specific aspect of the statement can be used to establish the reliability of that aspect.
[ 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 aspects goes no further than corroborating the declarant's credibility, the accused's guilt, or one party's theory of the case, which is not permissible at the threshold reliability stage.
[ 57 ] On the other hand, there may conceivably be situations in which several aspects of a statement are connected, such that evidence that demonstrates the truth or accuracy of one aspect is also capable of ruling out the possible explanations for the others. In such a case, the evidence is sufficiently connected to those other aspects and can accordingly assist in establishing their reliability.
[ 58 ] Contrary to what my colleagues suggest, it is not a matter of adding a step that involves splitting up the evidence to the approach established in Bradshaw. Rather, that approach and its underlying logic are what require a connection between the evidence and each aspect of the statement that one seeks to establish as reliable: the evidence must rule out alternative explanations specifically for that aspect.
[ 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 little to the other evidence and the Crown has a weak case at best" (Bradshaw, at para. 53). The concern is that evidence that tends to support the Crown's theory of the case may be treated as corroborating the statement when, really, it only points to the plausibility of the Crown's theory of the case or to the ultimate conclusion of the trial judge that the accused committed the offence.
[ 60 ] Karakatsanis J. addressed these issues in developing the Bradshaw analytical framework. She explained that in order to preserve "the distinction between threshold and ultimate reliability and to prevent the voir dire from overtaking the trial", it must be possible to distinguish between evidence that goes to the statement's threshold reliability and evidence that goes to the ultimate truth of the statement (Bradshaw, at para. 41):
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:
[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 — to the ultimate truth of the hearsay statement, not to the hearsay statement's threshold reliability.
(S. N. Lederman, A. W. Bryant and M. K. Fuerst, The Law of Evidence in Canada (4th ed. 2014), at §6.140)
(Bradshaw, at para. 42)
[ 61 ] The standard articulated in Bradshaw is the product of a line of jurisprudence that fluctuated between various ways of dealing with corroborative evidence at the threshold reliability stage. At one point, this Court had even banned the use of such evidence (see R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144). The standard set out in Bradshaw — under which corroborative evidence must eliminate plausible alternative explanations for the material aspects of the statement — reflects a careful balance between the need for a rigorous threshold reliability analysis and the need to allow for the admission of hearsay evidence when there are sufficient guarantees of reliability.
[ 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 establish the reliability of the aspect of the statement that pertains to the appellant's role in the events — the material aspect that the Crown sought to establish through the statement.
[ 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.
D. Threshold Reliability
[ 64 ] The trial judge erred in principle by considering the location of the pistols to be evidence that corroborated the entire statement. As a result, there is no deference owed to his finding on threshold reliability (see Youvarajah, at para. 31; see also R. v. Mohamed, 2023 ONCA 104, 423 C.C.C. (3d) 308, at para. 62). This Court must therefore assess whether the threshold reliability of K.A.'s statement was established on the basis of the evidence actually led in the voir dire (see Bradshaw, at paras. 17‑18 and 36).
[ 65 ] The Crown argues that the trial judge properly considered K.A.'s interest in not being identified as the person who had used the weapon and uttered threats against the complainant. The combined effect of the corroborative evidence and the circumstances overcomes the specific dangers raised by K.A.'s statement. K.A.'s failure to take a statement that was self‑serving in the fullest sense of the term, as well as his admission that he was in possession of the pistols and that he had handed one of them to the appellant, are important circumstances. Moreover, these are not circumstances that merely point to an absence of factors that would undermine the reliability of the statement.
[ 66 ] I disagree. 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, because possession carries less serious charges than the charges involving a greater degree of participation. The result of K.A.'s statement is that he himself faced only a charge of carrying a weapon for a dangerous purpose, while the appellant faced charges of assault with a weapon, using an imitation firearm in the commission of an assault, and uttering threats.
[ 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 testimony by an accomplice is particularly suspect: an accomplice may have an incentive to lie or shift blame to others" (para. 44).
[ 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 going beyond mere possession of the weapons, and that he could have tried to say that the weapon had never left his pocket. However, it seems to me that K.A. could have provided such an account only at the risk of being contradicted by the surveillance video (Exhibit P‑6). In any event, K.A. still gave an account that shifted the primary role in the incident onto 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. These elements do not provide any circumstantial guarantee of trustworthiness and do not overcome the specific danger raised by K.A.'s status as an accomplice.
[ 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, a fact that points to a connection to criminal behaviour. The temporal proximity between the statement and the events is not a useful factor either, given the specific danger raised by the statement: whether or not K.A. made his statement shortly after the events, the danger still exists that he lied in order to minimize his own participation. The trial judge failed to consider whether the proximity in time made it more or less likely that K.A. would have lied in order to minimize his role in the events.
[ 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 he tried to minimize his responsibility. Since this evidence does not eliminate the risk, it is of limited utility.
[ 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 when he made his statement. The police investigators did not warn him of the possible consequences of giving a false statement. The defence was deprived of any opportunity to cross‑examine K.A. on his statement.
[ 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 of testing the truth and accuracy of the statement. This is precisely the test that was not met in this case.
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, by agreement of the parties. There is therefore no question of excluding it; it simply did not form part of the voir dire evidence.
[ 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 of guilt and specifically mentioned that K.A.'s statement supported the complainant's testimony regarding the "crux of this case, the criminal use of the weapon by the accused". As a result, it is not clear that the trial judge's error was harmless or trivial, or that the evidence of guilt was so overwhelming that it could be said that the admission of the statement had no effect on the verdict.
[ 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.
VI. Conclusion
[ 80 ] For these reasons, I would allow the appeal, quash the convictions and order a new trial.
Joint Dissenting Reasons
English version of the reasons of Côté, Rowe and Kasirer JJ. delivered by
Côté and Kasirer JJ. —
I. Overview
[ 81 ] We have had the benefit of reading the reasons of our colleague Moreau J. With respect for our colleague's views, and substantially for the reasons of the majority of the Court of Appeal, Doyon and Cournoyer JJ.A., we are of the opinion that the appeal should be dismissed (2022 QCCA 1013, 82 C.R. (7th) 373).
[ 82 ] In support of his appeal to this Court, the appellant invites us to adopt the position of the dissenting judge at the Court of Appeal on this issue. The dissenting judge found that the trial judge erred in relying on evidence that only partially corroborated the material aspects of K.A.'s statement. On the question of the circumstances considered in the threshold reliability assessment, the dissenting judge found that the trial judge had made errors in principle.
[ 83 ] The respondent adopts the explanations provided by the majority of the Court of Appeal on these two points. The respondent also notes the following comment made by the majority in the second last paragraph of its reasons: [translation] "Finally, it is difficult to ignore the striking similarity between the complainant's testimony and K.A.'s statement, a fact that, in our view, tends to confirm that the statement is sufficiently reliable."
[ 84 ] We agree with the respondent that the two grounds raised by the appellant are without merit. However, on the question of the self‑contained nature of the voir dire, we agree with the conclusion of our colleague Moreau J. First, the curative proviso is the appropriate mechanism for considering the complainant's testimony on appeal. Second, the curative proviso cannot apply in this case.
II. Analysis
[ 85 ] Before we begin the analysis, it is appropriate to identify the applicable standard of review, a point on which the parties agree. In itself, the question of whether a statement may be introduced into evidence under the principled exception to the rule against hearsay is a question of law, which is subject to review on a correctness standard. However, an appellate court must show deference to the trial judge's application of the hearsay principles to the facts (R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 140). The trial judge's specific findings in the hearsay reliability analysis are not overturned unless there is a palpable and overriding error or an error in principle that tainted the analysis (Youvarajah, at para. 31; Bradshaw, at para. 17; Le, at para. 140).
[ 86 ] Having articulated the applicable standard of review, we must now examine the parties' respective arguments.
A. Consideration of the Search Results in the Assessment of Threshold Reliability
[ 87 ] Relying in particular on R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, the appellant argues that the search results cannot, in this case, constitute evidence which is relevant to the substantive reliability inquiry. He agrees with the dissenting judge that the trial judge erred in considering the search results to be corroborative evidence applicable to the entirety of K.A.'s statement.
[ 88 ] We disagree.
[ 89 ] The appellant was charged with assault with a weapon, using an imitation firearm in the commission of an assault and uttering threats. Doyon and Cournoyer JJ.A. rightly pointed out that at the time of the voir dire on the admissibility of K.A.'s statement, the appellant had not yet testified and that it was therefore necessary to demonstrate both the appellant's participation and the use of a weapon. Given the charges laid and the burden they entailed for the prosecution, there is indeed a logical connection between the aspect of the statement pertaining to the presence of a weapon in the washroom (corroborated by the discovery of the weapon at K.A.'s residence) and the aspect of the statement pertaining to the handling of that same weapon by the appellant at the same time and in the same location.
[ 90 ] The majority of the Court of Appeal was thus correct to point out that it [translation] "was . . . necessary to demonstrate both the appellant's participation and the use of a weapon" and that, "[b]y demonstrating the presence of a weapon at the witness's residence, the evidence confirmed its use in the washroom, which made it possible to support the statement that the weapon, held by the appellant, had been used to threaten the victim."
[ 91 ] Such a logical connection makes it possible, in the assessment of threshold reliability, to consider corroborative evidence that does not relate to all of the material aspects of a statement. Evidence of this nature generally cannot suffice, on its own, to establish threshold reliability. Our colleague Moreau J. agrees that "[i]t 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."
[ 92 ] The Manitoba Court of Appeal was therefore correct in concluding in R. v. Hall, 2018 MBCA 122, [2019] 1 W.W.R. 612, that "the . . . submission that substantive reliability requires the existence of corroborative evidence on all material aspects of the hearsay statement must be rejected" (para. 44). Similarly, the Saskatchewan Court of Appeal correctly stated that the "corroborating circumstances need not be strong" (R. v. Burns, 2016 SKCA 67, 337 C.C.C. (3d) 523, at para. 37; see also R. v. Allary, 2021 SKCA 110, at para. 32).
[ 93 ] In this context, and with respect for the opinion of the dissenting judge, we agree with the majority that the dissenting judge erred in limiting the value of the corroborative evidence to only one of the two material aspects of the statement, despite the fact that they were nevertheless logically connected:
[translation] We disagree with our colleague, who is of the opinion that this corroboration can confirm only the second aspect of the statement, and not the first aspect, which concerns the appellant's participation. Evidence cannot be split up in this manner to limit its corroboration to one material aspect, when the aspects are connected.
[ 94 ] Since the corroborative evidence at issue is logically connected to the two aspects of the statement, it is not necessary to address the distinct question of whether, when a statement has several material aspects that are not interconnected, the trial judge must carry out a global analysis of the statement or, instead, analyze each of its aspects separately. We will therefore leave that question open.
[ 95 ] As we need not decide this question, we will only comment briefly on this point.
[ 96 ] First, even though this Court, when it rendered its decision in Bradshaw, was mindful of the fact that a statement may have several material aspects, it did not see fit to include the splitting up of the statement in the steps of the approach that the trial judge must take when assessing the reliability of the statement (Bradshaw, at para. 57; R. v. U. (F.J.), [1995] 3 S.C.R. 764, at p. 796). The current approach seems to contemplate a global analysis of the statement, and this is what the courts below carried out.
[ 97 ] Second, we are of the view that it is for the trier of fact to give credit to certain aspects of a statement and not to others. This seems to be the best way to respect the separation between the role of trial judge — responsible for questions of law — and the role of trier of fact — responsible for questions of fact.
[ 98 ] In view of the foregoing, we conclude that the trial judge made no reviewable error in taking the discovery of the weapons into account as corroborative evidence. Respectfully, it is rather the analysis of the dissenting judge of the Court of Appeal that is tainted by the error that led him to conclude that the corroborative evidence could confirm only one of the two material aspects of the statement.
B. Consideration of Certain Circumstances in the Assessment of Threshold Reliability
[ 99 ] The appellant argues that the trial judge committed an error in principle which tainted his finding that threshold reliability was established in this case. The appellant claims that this error was committed in weighing the circumstances relating to threshold reliability. In that weighing exercise, the trial judge is alleged to have given too much weight to circumstances that were neutral or secondary, i.e. that point only to an absence of factors that would undermine the statement's reliability, while he should have given them less weight, or even no weight.
[ 100 ] The appellant is mistaken.
[ 101 ] It appears from the passages of the Court of Appeal's decision quoted above that the dissenting judge did not identify any error in principle, but instead used the presence of factors of relative weight as a basis for conducting his own examination of the circumstances. With respect, this is not consistent with the applicable standard of appellate review.
[ 102 ] It is well established that the relevance of the circumstances depends on the specific dangers associated with the hearsay in question and thus on the facts of the case (see Khelawon, at paras. 45 and 55; Youvarajah, at para. 21). That being so, it would be wrong to categorize, objectively and independently of the facts of the case, the circumstances that are neutral or secondary and those that are more important. The trial judge was entitled to decide, on the basis of the facts before him, what weight should be given to the circumstances in the overall assessment.
[ 103 ] It is true that, in Bradshaw, this Court stated that circumstances that "'[i]n essence simply point to an absence of factors that, if present, would detract from an otherwise trustworthy statement' . . . do not provide a circumstantial guarantee of trustworthiness" (Bradshaw, at para. 49, quoting R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 62). However, this passage of Bradshaw merely states that these circumstances are not sufficient on their own to establish threshold reliability. In our view, this does not mean that they are irrelevant. Such circumstances considered in conjunction with others (for example, corroboration even insufficient on its own), may lead to the conclusion that the statement has all the attributes required for acceptable threshold reliability. This Court recognized as much in R. v. Larue, 2018 YKCA 9, 434 D.L.R. (4th) 155, aff'd 2019 SCC 25, [2019] 2 S.C.R. 398, in which the threshold reliability of a hearsay statement was found to be established partly on the basis of "the absence of prior inconsistent statements" (para. 47 of the Court of Appeal's reasons). The same can be said for many other circumstances (see, e.g., R. v. Bernard, 2018 ABCA 396, 80 Alta. L.R. (6th) 258; R. v. Hall, 2018 MBCA 122, [2019] 1 W.W.R. 612).
[ 104 ] In the absence of an error in principle that tainted the analysis at first instance, the majority was correct in finding that the trial judge's decision was owed deference by the Court of Appeal. It is thus neither necessary nor appropriate for us to repeat the analysis of the circumstances.
[ 105 ] On this point, and with all due respect, we note only that the dissenting judge seems to have committed two errors in his analysis of the circumstances. First, contrary to what his reasons suggested at para. 38, Bradshaw does not impose a rigid rule that substantive reliability is always subsumed under procedural reliability where the procedural indicia are absent. Second, with regard to K.A.'s consultation with counsel, the dissenting judge appears to have required a guarantee of truthfulness rather than an indicium of reliability. On this point, our colleague Moreau J. appears to commit the same error. The fact that the witness spoke with counsel, the fact that his mother accompanied him when he made his statement and the fact that his mother was made aware of the tenor of the witness's rights, even if these are not guarantees of truthfulness, are indicia of reliability that the trial judge could validly consider (L.T.H., at para. 38; Khelawon, at para. 62).
C. Consideration of the Complainant's Testimony at Trial, Which Was Not Produced on the Voir Dire
[ 106 ] The respondent argues that the majority of the Court of Appeal could validly consider the complainant's testimony at trial, which was given before the closing of the voir dire but which was not produced on it (see C.A. reasons, at para. 71). Our colleague Moreau J. is of the view that "[o]n appeal, the appropriate mechanism for considering the complainant's testimony is the curative proviso in s. 686(1)(b)(iii) of the Criminal Code."
[ 107 ] Given the state of this Court's jurisprudence, we recognize that the distinct question of the self‑contained nature of the voir dire at the trial stage is an open one. We also take due note, however, that this question was not raised by the appellant in support of his appeal and that, accordingly, it was not fully argued before this Court. These circumstances call for caution.
[ 108 ] In the circumstances, we agree with our colleague Moreau J. that caution must be exercised: this appeal is not an appropriate one for dealing with the issue of the limits of the self‑contained nature of the voir dire at the trial stage.
III. Conclusion
[ 109 ] For these reasons, we would dismiss the appeal.
Appeal allowed, Côté, Rowe and Kasirer JJ. dissenting.
Solicitor for the appellant: Emmanuelle Rheault, Montréal.
Solicitor for the respondent: Director of Criminal and Penal Prosecutions, Montréal.