“In Children’s Aid Society of Toronto v. G.S., 2018 ONCJ 124 (Ont. C.J.) (CanLII), Justice Stanley Sherr provided a neat synthesis of the Bradshaw reorganization of hearsay statements. At paragraph 16 of G.S., Justice Sherr stated:
The following statements made in Bradshaw are pertinent to the hearsay analysis:
a) The presumptive inadmissibility of hearsay may be overcome where its proponent establishes on a balance of probabilities that what is proposed for admission falls within a categorical exception, or satisfies the twin criteria of necessity and threshold reliability under the principled approach. – Bradshaw at pars. 22-23.
b) In determining threshold reliability, the trier of fact must identify the specific hearsay dangers inherent in the out-of-court declaration. The trier of fact must then identify the means by which these dangers can be overcome. These dangers arise notably due to the absence of contemporaneous cross-examination of the hearsay declarant before the trier of fact (Khelawon, at paras. 35 and 48). The dangers relate to the difficulties of assessing the declarant’s perception, memory, narration, or sincerity, and should be defined with precision to permit a realistic evaluation of whether they have been overcome. – Bradshaw at para. 26.
c) The hearsay dangers can be overcome and threshold reliability can be established by showing that (1) there are adequate substitutes for testing truth and accuracy (procedural reliability) or (2) there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability) (Khelawon, at paras. 61-63; Youvarajah, at para. 30) – Bradshaw at para. 27.
d) Procedural reliability is established when “there are adequate substitutes for testing the evidence”, given that the declarant has not “state[d] the evidence in court, under oath, and under the scrutiny of contemporaneous cross-examination” (Khelawon, at para. 63). These substitutes must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement (Khelawon, at para. 76; Hawkins, at para. 75; Youvarajah, at para. 36).
e) A hearsay statement is also admissible if substantive reliability is established, that is, if the statement is inherently trustworthy (Youvarajah, at para. 30; R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915, at p. 929). To determine whether the statement is inherently trustworthy, the trial judge can consider the circumstances in which it was made and evidence (if any) that corroborates or conflicts with the statement (Khelawon, at paras. 4, 62 and 94-100; R. v. Blackman, 2008 SCC 37 (CanLII), [2008] 2 S.C.R. 298, at para. 55). – Bradshaw at para. 30.
f) The two approaches to establishing threshold reliability may work in tandem. Procedural reliability and substantive reliability are not mutually exclusive (Khelawon, at para. 65) and “factors relevant to one can complement the other”. – Bradshaw at para. 32.
g) The distinction between threshold and ultimate reliability, while “a source of confusion”, is crucial (Khelawon, at para. 50). Threshold reliability concerns admissibility, whereas ultimate reliability concerns reliance (Khelawon, at para. 3). – Bradshaw at para. 39.
h) In short, in the hearsay context, the difference between threshold and ultimate reliability is qualitative, and not a matter of degree, because the trial judge’s inquiry serves a distinct purpose. In assessing substantive reliability, the trial judge does not usurp the trier of fact’s role. Only the trier of fact assesses whether the hearsay statement should ultimately be relied on and its probative value. – Bradshaw at para. 41.
Bradshaw, supra, makes it clear that in determining whether a statement is inherently trustworthy, the trial judge need not conclude that reliability be established with absolute certainty. However, the threshold reliability must be sufficiently high to overcome the dangers ordinarily presented by hearsay evidence.10
The essence of Khelawon, supra, and Bradshaw, supra, and the principled approach to admitting otherwise inadmissible hearsay evidence is that hearsay evidence will be admitted if it has been made in circumstances which substantially negate the possibility that the declarant was untruthful or mistaken. The circumstances must be sufficiently trustworthy such that even a sceptical caution would look at the statement as being trustworthy; and so trustworthy that it is unlikely that evidence would change even under cross-examination.”
Macarthur v. Remani-Macarthur, 2018 ONCJ 637 (CanLII) at 59-61