Khelawon: The Principled Approach to Hearsay Revisited

Canadian Criminal Law Review, Vol. 12, pp. 95-114, 2008

20 Pages Posted: 12 Jul 2010

See all articles by Hamish Stewart

Hamish Stewart

University of Toronto - Faculty of Law

Date Written: 2008

Abstract

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

Suggested Citation

Stewart, Hamish, Khelawon: The Principled Approach to Hearsay Revisited (2008). Canadian Criminal Law Review, Vol. 12, pp. 95-114, 2008, Available at SSRN: https://ssrn.com/abstract=1639142

Hamish Stewart (Contact Author)

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada

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