“The trial judge admitted Ms. Brydson’s evidence under the principled exception to the hearsay rule, as articulated by the Supreme Court of Canada in R. v. Khelawon, 2006 SCC 57 (CanLII), [2006] 2 S.C.R. 787. The principled exception allows the admission of a hearsay statement if two conditions are fulfilled: necessity and reliability. While these are separate requirements, they should not be considered in isolation, as one could affect the other: Khelawon, para. 77.
Necessity is to be interpreted flexibly, and is not restricted to the absolute unavailability of a witness: Khelawon, para. 78. Given that Ms. Brydson was in Jamaica and not Ontario, that the parties’ focus was on the reliability requirement, and the conclusion I come to on that issue, I need not discuss necessity further.
Reliability is to be assessed functionally, by focusing “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”: Khelawon, para. 93. In general, the reliability requirement can be satisfied by showing either of the following conditions.
First, it is possible that despite being hearsay, “there is no real concern about whether the statement is true or not because of the circumstances in which it came about”: Khelawon, para. 62. In other words, though the statement is hearsay, we can put “sufficient trust in [its] truth and accuracy”: Khelawon, para. 62. The court may consider the presence of corroborating or conflicting evidence to determine the inherent trustworthiness of the statement: Khelawon, paras. 93-95. The court may also consider whether the declarant was able to perceive the events described in the hearsay statement: R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915, at pp. 933-35.
Alternatively, it may be that “no real concern arises from the fact that the statement is presented as hearsay because, in the circumstances, its truth and accuracy can nonetheless be sufficiently tested”: Khelawon, para. 63. This requirement may be met if the declarant is available for cross-examination: Khelawon, at para. 66.
In all cases, the principled exception to the hearsay rule operates as a case-by-case exception, and courts must resist any temptation to reduce the principled exception to a categorical or pigeon-holing exercise: Khelawon at para. 45.”