Khelawon: The Principled Approach to Hearsay Revisited
Canadian Criminal Law Review, Vol. 12, pp. 95-114, 2008
20 Pages Posted: 12 Jul 2010
Date Written: 2008
Under the principled approach, hearsay evidence is admissible if it is necessary and reliable. In Khelawon, the Supreme Court of Canada has reoriented the reliability inquiry around the question of whether the hearsay evidence in question should be admitted because, in the circumstances, the inability of the adverse party to test the evidence is not of great concern. Usually, the concern about testing the evidence can be allayed by the inherent reliability of the evidence or by the presence of substitutes for cross-examination before the trier of fact. In this comment, I argue that although this approach is generally consistent with the principled approach to the admissibility of evidence, it also creates some uncertainty about how trial judges are to assess threshold reliability. Although the question to be asked is now reasonably clear, Khelawon sets no particular limits on the factors that may be considered in answering that question. While this flexibility may seem consistent with the principled approach, there is a danger that it will lead to voir dires that either recapitulate the main trial or are limited on an ad hoc basis. Based in part on a discussion of four appellate decisions on the principled approach decided after Khelawon, I suggest that the further development of the principled approach to hearsay will require an approach to threshold reliability that limits the relevant factors to those bearing on the testimonial qualities of the hearsay declarant.
Keywords: hearsay, Khelawon, cross-examination, admissibility of evidence, threshold reliability, testimonial quality
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