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EVIDENCE - Hearsay rule - Exceptions - Necessary and reliable evidence - Methods of proof - Circumstantial evidence

Thursday, June 29, 2017 @ 3:28 PM  

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Appeal by the Crown from a judgment of the British Columbia Court of Appeal setting aside Bradshaw’s convictions for first degree murder and ordering a new trial. The Court had to determine when a trial judge could rely on corroborative evidence to conclude that the threshold reliability of a hearsay statement was established. Thielen was arrested on July 30, 2010. He initially denied his involvement in the murders of Lamoureux and Bontkes in March 2009. However, when the police told Thielen that he had been the target of a Mr. Big operation, he described the murders and later identified Bradshaw as a participant. A few days later, 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. Thielen pled guilty to second degree murder before the trial started. Thielen was called as a Crown witness in Bradshaw’s trial, but refused to be sworn to give testimony. The Crown sought to admit part of the re-enactment video, a hearsay statement, into evidence. The trial judge ruled that this hearsay statement was admissible. The Court of Appeal allowed the appeal and ordered a new trial. It held that the trial judge erred in admitting the re-enactment video because it was not sufficiently reliable.

HELD: Appeal dismissed. To determine whether a hearsay statement was admissible, the trial judge was required to assess the statement’s threshold reliability. Threshold reliability was established when the hearsay was sufficiently reliable to overcome the dangers arising from the difficulty of testing the truthfulness or accuracy of the statement. The hearsay dangers could be overcome and threshold reliability could be established by showing that (1) there were adequate substitutes for testing truth and accuracy (procedural reliability) or (2) there were sufficient circumstantial or evidentiary guarantees that the statement was inherently trustworthy (substantive reliability). To determine whether corroborative evidence was of assistance in the substantive reliability inquiry, a trial judge should: (1) identify the material aspects of the hearsay statement that were tendered for their truth; (2) identify the specific hearsay dangers raised by those aspects of 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 the corroborative evidence ruled out these alternative explanations such that the only remaining likely explanation for the statement was the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement. 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 about Bradshaw’s participation in the murders. In addition to the reliability dangers that were inherent in all hearsay statements, there were specific reasons to be concerned that Thielen lied. Thielen had a motive to lie to shift the blame to Bradshaw. The trial judge relied significantly on the existence of corroborative evidence, which included some of Bradshaw’s conversations that were surreptitiously recorded and his cell phone records, to deem Thielen’s statement admissible. However, the evidence he relied on did not, when considered in the circumstances of the case, show that the only likely explanation was that Thielen was truthful about Bradshaw’s involvement in the murders. It did not substantially negate the possibility that Thielen lied about Bradshaw’s participation in the murders. While this corroborative evidence could increase the probative value of the re-enactment statement if admitted, it was of no assistance in assessing the statement’s threshold reliability. The trial judge therefore erred in relying on this corroborative evidence. Bradshaw’s convictions were set aside and a new trial was ordered.

R. v. Bradshaw, [2017] S.C.J. No. 35, Supreme Court of Canada, B. McLachlin C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, R. Wagner, S. Côté and M. Brown JJ., June 29, 2017. Digest No. TLD-June262017012SCC