R. v. Khelawon, 2006 SCC 57 – Clarifying Hearsay, Again

R. v. Khelawon, 2006 SCC 57 – Clarifying Hearsay, Again

On behalf of Neuberger & Partners LLP posted in Uncategorized on Thursday January 31, 2013.

This recent decision of the Supreme Court of Canada has once again attempted to clarify how lower courts are to deal with issues of necessity and reliability in the determination of whether an out-of-court video taped statement ought to be admitted into evidence at trial. The issue often arises in domestic violence cases where a complainant does not wish to attend court or proceed to trial after having given the police a video statement under oath. When the complainant fails to attend court or is otherwise unavailable, the Crown can bring an Application to admit the statement for the truth of its contents provided two conditions are satisfied – necessity and reliability. It is the later condition that has been the subject of considerable debate since the Supreme Court’s decision in Regina v. Starr, [2000] 2 S.C.R. 144. That decision has generated much judicial commentary and academic criticism on various grounds, but most significantly on defining what constitutes “extrinsic” circumstances. In Khelawon, the Supreme Court did not expand the legal test developed from the line of cases of Regina v. Khan,[1990] 2 S.C.R. 531, Regina v. Smith, [1992] 2 S.C.R. 915, Regina v. B.(K.G., [1993] 1 S.C.R., 740, but sought to clarify whether “extrinsic” circumstances to the taking of the statement can be considered in determining threshold reliability.

In a unanimous judgement written by Charron J., the Supreme Court has done away with categorizing factors in terms of threshold and ultimate reliability. Comments to the contrary in previous decisions are to no longer be followed. Instead, all relevant factors should be considered including, in appropriate cases, the presence of supporting or contradictory evidence, such as whether the declarant was influenced in making the allegations, and hence the statement, by some disgruntlement with the accused. The trial judge need not determine, at this stage, the truth of the statement but that there is sufficient reliability, based upon all relevant factors, to admit the evidence. The trial judge is to be guided by trial fairness, and not only in relation to the decision on admissibility but also is informed in applying his or her residual discretion to exclude the evidence even if necessity and reliability can be shown.

Although, the ultimate test for reliability is subjecting the declarant to cross-examination, this decision arms defence lawyers with greater ability to attack an out-of-court statement beyond simply examining the immediate features of the statement such as the fact that it was provided on video or made under a promise to tell the truth, similar to the archaic concept that a person would not lie if s/he swears an oath. Important and relevant factors that were previously ignored can now be drawn upon to argue for the exclusion of such evidence. Most important are factors that tend to establish a motivation to make the allegations that are less than meritorious – that disclose an animus or ulterior motive such as gaining an advantage in a matrimonial dispute. Similarly, factors relating to the declarant’s competency to provide a statement are fertile ground to advance evidence on and to seek exclusion.

In practice, it is yet to be seen if this decision will expand or restrict the number of out-of-court statements that make their way into trial as evidence.

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On behalf of Neuberger & Partners LLP posted in COVID-19 on Tuesday March 17, 2020.

At Neuberger and Partners, we are monitoring the COVID-19 situation and have implemented safety measures to ensure the safety of our clients and staff. Our priority is and always will be the health, well-being and safety of our staff, clients and colleagues.

We have put in place various measures to prevent and minimize the impact of COVID-19:

  • In addition to standard hand-washing habits, our staff are washing hands before and after every client interaction;
  • All individuals entering our office will be required to use our hand sanitizer to ensure the safety of our other clients and staff;
  • Regular disinfecting of our offices, public areas, meeting rooms and board rooms as well as increasing the frequency of disinfection of higher-traffic surface areas;
  • If a lawyer or client who has a scheduled meeting is feeling unwell, they will be strongly encouraged to stay home;
  • For the time being, we will avoid greeting clients and colleagues with our usual handshakes;
  • We will make every effort to ensure our firm will be stocked up with extra tissue and alcohol-based hand sanitizer; and
  • We will monitor and stay informed from the Government of Canada and World Health Organization for facts as they become available. We will ensure all staff and team members are educated on symptoms and are well informed on prevention and best practices.

Frequently Asked Questions:

Will the firm still run if there are closures?

  • We are committed to assisting our clients. We remain open to assist our clients at this time (following aforementioned standards for health and safety). For clients who wish to communicate with our firm virtually, we have the technology for virtual meetings and are able to respond to the needs of our clients in a manner best to protect our staff and clients’ health.

Are staff and lawyers set up to work virtually?

  • All lawyers and staff are set up to work virtually and continue to assist clients and one another remotely. All lawyers are available via telephone, email and virtual video conferencing.

What is the court situation? How will we deal with court closures?

  • At this time, the Superior Court of Justice is closed from March 17, 2020 to June 1, 2020 – unless a judge orders otherwise.
    If you have a March matter, your matter will be postponed to June 2, 2020.
    April matters will be postponed to June 3, 2020 and May matters will be pushed to June 4, 2020.
  • Similarly, the Ontario Court of Justice will be closed for 10 weeks for all out of custody matters in criminal practice court. In custody matters will still be addressed. It is unclear if out of custody matters such as trials or preliminary hearings will continue since the courts have left this decision to the discretion of the judges. However, Bail courts will remain open for the time being.
  • The Court of Appeal for Ontario has suspended all scheduled appeals until April 3, 2020. But we are still able to file materials and apply for urgent appeals to be heard.
  • We will advise clients by email of their next Court date.

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  • Payments can be made via e-transfer and visa payments can be made over the phone.

If I have to deliver something to my lawyer, how shall I go about it?

  • For clients who wish to drop off documents but do not wish to come in contact with any one at the firm, you are encouraged to drop them off in our mail slot in front of our office.

We will be open and available for any questions, comments or concerns. Please call (416) 364-3111 for any further information.

Stay safe and healthy,

Joseph Neuberger