R. v. Hakimi, 2019 ONCA 749.

BRADSHAW - CIRCUMSTANTIAL EVIDENCE - THRESHOLD RELIABILITY

Background

Appellant was convicted by a jury of aggravated assault. An individual, thought to be the Appellant, fired shots inside a restaurant. As victim exited the restaurant, he was shot twice. Main issue at trial was whether the Appellant was identified beyond a reasonable as the person who fired the shots, and shot the victim.

Until trial, witnesses consistently identified Appellant as individual who fired the shots. At trial, however, victim and two witnesses recanted prior statements. On appeal, counsel for the Appellant argues that the trial judge erred in admitting the statements as hearsay on the ground that substantive reliability had not been met.

On Appeal

PROCEDURAL RELIABILITY CAN ESTABLISH THRESHOLD RELIABILITY.

R v Bradshaw 2017 SCC 25 tells us that:

“Procedural reliability is established when “there are adequate substitutes for testing the evidence”, given that the declarant has not stated the evidence in court, under oath, and under the scrutiny of cross-examination. These substitutes must provide satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement. Substitutes for traditional safeguards include a a video record of the statement, the presence of an oath, and warning about consequences of lying. However, some form of cross of declarant, such as preliminary inquiry testimony or cross of recanting witness at trial, is usually required.”

Refresher: Threshold Reliability

In Bradshaw, SCC clarified that there are two methods capable of establishing threshold reliability: (1) substantive reliability, and (2) procedural reliability.

Procedural reliability: when evidence cannot be tested through cross-examination, are there additional safeguards present that act as a functional substitute for trial test? Examples: videotaped statement, cross-examination at prelim, statement made under oath, etc.

Substantive reliability: is the statement inherently trustworthy? Is the evidence prima facie reliable to be admitted despite being hearsay? Example: natural, specific utterance by a young child implicating the accused (See R v Khan, 1990 SCC).

Conclusion

Statements in this case were video-recorded, declarants were under oath or cautioned to tell the truth. Two witnesses were cross-examined at prelim. At trial, victim and 2 witnesses were cross-examined.