R. v. Khelawon (R.) (2006), 220 O.A.C. 338 (SCC)
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[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Temp. Cite: [2006] O.A.C. TBEd. DE.039
Her Majesty the Queen (appellant) v. Ramnarine Khelawon (respondent) and Attorney General of British Columbia and Criminal Lawyers’ Association (Ontario) (interveners)
(30857; 2006 SCC 57; 2006 CSC 57)
Indexed As: R. v. Khelawon (R.)
Supreme Court of Canada
McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ.
December 14, 2006.
Summary:
The accused was found guilty of assault causing bodily harm and assault with a weapon in relation to Dinino. He was found guilty of aggravated assault and uttering death threats in relation to Skupien. The accused appealed. The issue was whether the trial judge erred in ruling that the videotaped statements of the complainants, deceased at the time of the trial, were admissible as proof of the truth of their contents, pursuant to the principled exception to the hearsay rule. The statements were central to the Crown’s case and counsel agreed that if the statements were inadmissible, acquittals should be entered.
The Ontario Court of Appeal, in a decision reported 195 O.A.C. 11, allowed the appeal. Both statements were inadmissible. Blair, J.A., dissented respecting the admissibility of the statement by Skupien. The accused was acquitted. The Crown appealed in respect of the Skupien statement.
The Supreme Court of Canada dismissed the appeal.
Evidence – Topic 1504
Hearsay rule – General principles and definitions – What constitutes hearsay – The Supreme Court of Canada held: “The general exclusionary rule [respecting hearsay] is a recognition of the difficulty for a trier of fact to assess what weight, if any, is to be given to a statement made by a person who has not been seen or heard, and who has not been subject to the test of cross-examination. The fear is that untested hearsay evidence may be afforded more weight than it deserves. The essential defining features of hearsay are therefore the following: (1) the fact that the statement is adduced to prove the truth of its contents and (2) the absence of a contemporaneous opportunity to cross-examine the declarant” – See paragraphs 34 to 41.
Evidence – Topic 1527
Hearsay rule – Hearsay rule exceptions and exclusions – Where admission of hearsay necessary and evidence reliable – The Supreme Court of Canada held that the factors to be considered on the inquiry respecting the admission of hearsay evidence could not be categorized in terms of threshold and ultimate reliability – Comments to the contrary in previous decisions of the court, including R. v. Starr, should no longer be followed – Rather, all relevant factors should be considered including, in appropriate cases, the presence of supporting or contradictory evidence – A court should adopt a more functional approach and focus on the particular dangers raised by the hearsay evidence sought to be introduced and on those attributes or circumstances relied upon by the proponent to overcome those dangers – In addition, the trial judge had to remain mindful of the limited role that he or she played in determining admissibility: it was crucial to the integrity of the fact-finding process that the question of ultimate reliability not be pre-determined on the admissibility voir dire – See paragraphs 1 to 4, 50 to 100.
Evidence – Topic 1527
Hearsay rule – Hearsay rule exceptions and exclusions – Where admission of hearsay necessary and evidence reliable – The manager of a retirement home was charged with aggravated assault and uttering death threats to an elderly and frail resident, Skupien – Skupien made unsworn statements to various people, including a videotaped statement to the police – There was no evidence that the Crown attempted to preserve Skupien’s evidence by application under ss. 709 to 714 of the Criminal Code – Skupien died before the trial – At issue was whether Skupien’s videotaped statement to the police was admissible, as proof of the truth of its contents, under the principled exception to the hearsay rule – Necessity was conceded – The Supreme Court of Canada held that the statement was not admissible – The statement was not sufficiently reliable to overcome the dangers it presented – The circumstances in which it came about did not provide reasonable assurances of inherent reliability – To the contrary, they gave rise to a number of serious issues including: whether Skupien was mentally competent, whether he understood the consequences of making his statement, whether he was influenced in making the allegations by a disgruntled employee who had been fired by the accused, whether his statement was motivated by a general dissatisfaction about the management of the home, and whether his injuries were caused by a fall rather than the assault – In these circumstances, Skupien’s unavailability for cross-examination posed significant limitations on the accused’s ability to test the evidence and, in turn, on the trier of fact’s ability to properly assess its worth – In all the circumstances, particularly given that the Crown’s case was founded on the hearsay statement, the admission of the evidence risked impairing the fairness of the trial and should not be permitted – See paragraphs 5 to 7, 101 to 109.
Cases Noticed:
R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161; 2000 SCC 40, consd. [para. 1].
R. v. Khan (A.), [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353, consd. [para. 1].
R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321, consd. [para. 1].
R. v. F.J.U., [1995] 3 S.C.R. 764; 186 N.R. 365; 85 O.A.C. 321, consd. [para. 1].
R. v. Abbey, [1982] 2 S.C.R. 14; 43 N.R. 30, refd to. [para. 35].
R. v. O’Brien, [1978] 1 S.C.R. 591; 16 N.R. 271, refd to. [para. 35].
R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1, refd to. [para. 37].
R. v. Mapara (S.) et al. (2005), 332 N.R. 244; 211 B.C.A.C. 1; 349 W.A.C. 1; 2005 SCC 23, consd. [para. 42].
R. v. Dersch (W.W.) et al., [1990] 2 S.C.R. 1505; 116 N.R. 340; 43 O.A.C. 256; 36 Q.A.C. 258, refd to. [para. 47].
R. v. Rose (J.), [1998] 3 S.C.R. 262; 232 N.R. 83; 115 O.A.C. 201, refd to. [para. 47].
R. v. Mills (B.J.), [1999] 3 S.C.R. 668; 248 N.R. 101; 244 A.R. 201; 209 W.A.C. 201, refd to. [para. 48].
R. v. Hawkins (K.R.) and Morin (C.), [1996] 3 S.C.R. 1043; 204 N.R. 241; 96 O.A.C. 81, consd. [para. 51].
R. v. Wilcox (J.A.) et al. (2001), 192 N.S.R.(2d) 159; 599 A.P.R. 159; 152 C.C.C.(3d) 157; 2001 NSCA 45, refd to. [para. 61].
R. v. Czibulka (L.) (2004), 190 O.A.C. 1; 189 C.C.C.(3d) 199 (C.A.), refd to. [para. 61].
R. v. B.C. and K.G. (1993), 62 O.A.C. 13; 12 O.R.(3d) 608 (C.A.), consd. [para. 96].
Idaho v. Wright (1990), 497 U.S. 805 (S.C.), consd. [para. 97].
Authors and Works Noticed:
Paciocco, David M., The Hearsay Exceptions: A Game of “Rock, Paper, Scissors”, in Special Lectures of the Law Society of Upper Canada 2003: The Law of Evidence (2004), pp. 29 [para. 61]; 36 [para. 100].
Wigmore on Evidence (2nd Ed. 1923), vol. 3, pp. 153 to 154, § 1420 [paras. 42, 62, 107].
Counsel:
John S. McInnes and Eliott Behar, for the appellant;
Timothy E. Breen, for the respondent;
Alexander Budlovsky, for the intervenor the Attorney General of British Columbia;
Louis P. Strezos and Joseph Di Luca, for the intervenor the Criminal Lawyers’ Association (Ontario).
Solicitors of Record:
Ministry of the Attorney General of Ontario, Toronto, Ontario, for the appellant;
Fleming, Breen, Toronto, Ontario, for the respondent;
Ministry of the Attorney General of British Columbia, Vancouver, British Columbia, for the intervenor the Attorney General of British Columbia;
Louis P. Strezos and Associate, and Di Luca Barristers, Toronto, Ontario, for the intervenor the Criminal Lawyers’ Association (Ontario).
This appeal was heard on December 16, 2005, by McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ., of the Supreme Court of Canada.
The judgment of the Supreme Court was delivered in both official languages on December 14, 2006, by Charron, J.
