R. v. Blackman, 2008 SCC 37, [2008] 2 SCR 298

                                                 SUPREME COURT OF CANADA

Between:

Leucherin Blackman

Appellant

and

Her Majesty The Queen

Respondent

Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.

______________________________

R. v. Blackman, [2008] 2 S.C.R. 298, 2008 SCC 37

Leucherin Blackman                                                                                                          Appellant

v.

Her Majesty The Queen                                                                                                 Respondent

Indexed as:  R. v. Blackman

Neutral citation:  2008 SCC 37.

File No.:  31885.

2007:  December 10; 2008: June 26.

Present:  McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.

on appeal from the court of appeal for ontario

Criminal law — Evidence — Admissibility — Hearsay — Principled approach to hearsay rule — Victim making statements to his mother in weeks leading up to his death which provided support for Crown’s theory at trial that accused had  motive to kill him — Trial judge admitting victim’s out‑of‑court statements under principled approach to hearsay — Accused convicted of first‑degree murder — Whether out‑of‑court statements should have been admitted.

The accused was charged with first degree murder following the shooting death of E.  The shooting took place in April 2001.  The Crown’s theory at trial was that the accused shot E in retaliation for a previous incident in which E had stabbed the accused.  The Crown further alleged that the accused, together with two other men, had tried unsuccessfully to kill E two months before the fatal shooting.  A voir dire was held to determine the admissibility of statements made by E to his mother in the weeks leading up to his death.  In these statements, E told his mother that he had stabbed a man following a dispute over a pool debt in July 2000 and that he had been shot outside a strip club in February 2001 by three men,  the “guys whom he had the problem with” in July 2000.  At the conclusion of the voir dire, the trial judge ruled that the statements were admissible.  At the end of a long trial, the accused was convicted of first degree murder by the jury.  The majority of the Court of Appeal concluded that E’s statements were properly admitted under the principled approach to hearsay and upheld the accused’s conviction.  The dissenting judge found that the trial judge did not apply the proper test in determining the threshold reliability of the evidence and would have set aside the conviction and ordered a new trial.  The sole issue in this appeal as of right is the admissibility of E’s statements.

Held:  The appeal should be dismissed.

E’s statements are admissible under the principled approach to hearsay.  The Crown has established the twin criteria of necessity and reliability on a balance of probabilities.  Necessity is made out of E’s death.  The reliability criterion is usually met by showing that sufficient trust can be put in the truth and accuracy of the statements because of the way in which they came about, or by showing that in the circumstances the ultimate trier of fact will be in a position to sufficiently assess their worth.  In this case, the Court of Appeal was divided more particularly on whether the trial judge erred by applying the wrong test and in his approach to the question of motive and the mother’s evidence.  The trial judge must start from the premise that hearsay statements are presumptively inadmissible and then search for indicia of trustworthiness sufficient to displace the general exclusionary rule.  Otherwise, the trial judge risks falling into error by reversing the onus.  Here,  the trial judge applied the correct test.  Although his comments about there being nothing “inherently unreliable” about the statements are cause for concern, these concerns are sufficiently alleviated when the comments are read in context.  In addition, it is apparent from a reading of the ruling in its entirety that the trial judge relied on relevant factors in admitting the statements.  The trial judge’s ruling was reasonable and supported by the evidence and is therefore entitled to deference. [33‑35] [38] [52]

The focus of the admissibility inquiry in all cases must be on the particular dangers arising from the hearsay nature of the evidence.  There is no doubt that the presence or absence of a motive to lie is a relevant consideration in assessing whether the circumstances in which the statements came about provide sufficient comfort in their truth and accuracy to warrant admission.  Motive, however, is but one factor to consider in determining threshold reliability, albeit one which may be significant depending on the circumstances.  In this case, there was circumstantial evidence to support the inference that E had no motive to lie to his mother.  The trial judge considered the relevant factors in determining whether E had a motive to fabricate, including the nature of the relationship between E and his mother and the context in which the statements were made.  His approach reveals no error.  In the absence of any error in principle, or a finding that the trial judge’s decision is unreasonable or unsupported by the evidence, there is no basis to interfere with his weighing of the various factors. [42-43][46]

While there were inconsistencies in the mother’s evidence and there was also evidence that she had received information from others about the stabbing incident, the trial judge was correct in finding that the difficulties with her evidence were matters properly left to the ultimate trier of fact, because she was available to be cross‑examined at trial.  The triers of fact were therefore in a position to fully assess the truthfulness and accuracy of her testimony. [47] [50]

In appropriate circumstances, a corroborative item of evidence can be considered in assessing the threshold reliability of a statement.  However, trial judges must be aware of the limited role they play in determining admissibility.  It is essential to the integrity of the fact‑finding process that the question of ultimate reliability not be pre‑determined on the admissibility voir dire.  The voir dire must remain focussed on the hearsay evidence in question.  It is not intended, and cannot be allowed by trial judges, to become a full trial on the merits. [55-57]

Cases Cited

Distinguished:  R. v. Czibulka (2004), 189 C.C.C. (3d) 199; explained: R. v. Khelawon, [2006] 2 S.C.R. 787, 2006 SCC 57; referred to: R. v. Arp, [1998] 3 S.C.R. 339; R. v. Mapara, [2005] 1 S.C.R. 358, 2005 SCC 23; R. v. Couture, [2007] 2 S.C.R. 517, 2007 SCC 28; R. v. Humaid (2006), 208 C.C.C. (3d) 43; R. v. Starr, [2000] 2 S.C.R. 144, 2000 SCC 40; R. v. Khan, [1990] 2 S.C.R. 531.

Authors Cited

Paciocco, David M., and Lee Stuesser.  The Law of Evidence, 4th ed.  Toronto:  Irwin Law, 2005.

APPEAL from a judgment of the Ontario Court of Appeal (MacPherson, Simmons and Cronk JJ.A.) (2006), 84 O.R. (3d) 292, 218 O.A.C. 291, 215 C.C.C. (3d) 524, [2006] O.J. No. 5041 (QL), 2006 CarswellOnt 8085, upholding a conviction for first degree murder.  Appeal dismissed.

C. Leslie Maunder and Mark Halfyard, for the appellant.

Jennifer M. Woollcombe, for the respondent.

The judgment of the Court was delivered by

Charron J. —

1.  Overview

[1]     Leucherin Blackman appeals from his conviction for first degree murder in respect of the death of 18-year-old George Ellison.  The sole issue on this appeal is the admissibility of certain statements made by the deceased to his mother, Gwendolyn Freckleton, which provide support for the Crown’s theory that Mr. Blackman had a motive to kill Mr. Ellison.  This Court is asked to decide whether the statements were properly admitted for the truth of their contents under the principled approach to hearsay.

[2]     Mr. Blackman was charged with first degree murder following the shooting death of Mr. Ellison.  The shooting took place in April 2001 at a busy after-hours nightclub in Toronto.  The Crown’s theory at trial was that Mr. Blackman shot Mr. Ellison in retaliation for a July 2000 incident in which Mr. Ellison stabbed Mr. Blackman outside a sports bar in the Oakwood and Vaughan Road area of Toronto.  The Crown further alleged that Mr. Blackman, together with two other men, tried unsuccessfully to kill Mr. Ellison outside a strip club two months before the fatal shooting.

[3]     A voir dire was held to determine the admissibility of statements made by Mr. Ellison to his mother in the weeks leading up to his death.  The Crown adduced evidence that Mr. Ellison told Ms. Freckleton that he stabbed a man following a dispute over a pool debt in July 2000.  He also told his mother that he was shot outside a strip club in February 2001 by two black men and a white man, “the guys whom he had the problem with at Vaughan Road who he stabbed”.  The two black men were brothers, he indicated, and the one who shot Mr. Ellison was “[t]he black one.  Not the one that he stabbed.”

[4]     At the conclusion of the voir dire, the trial judge ruled that Mr. Ellison’s statements to his mother were admissible.  Mr. Blackman did not testify at trial. Following a 30-day trial before judge and jury, Mr. Blackman was convicted of first degree murder.  His appeal to the Court of Appeal for Ontario was dismissed.  The court  was divided, however, on the question of the admissibility of Mr. Ellison’s out-of-court statements.  Cronk J.A (MacPherson J.A. concurring) concluded that Mr. Ellison’s statements were properly admitted at trial under the principled approach to hearsay.  Simmons J.A., in dissent, was not satisfied that the trial judge applied the correct test in determining the threshold reliability of the evidence.  In particular, Simmons J.A. was of the view that the trial judge erred in his approach on the question of motive to lie, placed too much significance on the statements being against Mr. Ellison’s interest, and  relied too heavily on the fact that Ms. Freckleton was available to be cross-examined to ameliorate the concerns about Mr. Ellison’s truthfulness.  Accordingly, Simmons J.A.  would have allowed the appeal, set aside the conviction and ordered a new trial.  Mr. Blackman appeals to this Court as of right, relying mainly on the same points raised by Simmons J.A.

[5]     For the reasons that follow, I would not interfere with the trial judge’s ruling. Accordingly, I would dismiss the appeal.

2.  Background

[6]     Mr. Blackman was charged with first degree murder following the shooting death of 18-year-old George Ellison.  The shooting took place in April 2001 at a busy after-hours nightclub in Toronto.  At approximately 3:40 a.m. on the night in question, four black males approached Peter Keene, the operator of the nightclub, and asked him to unlock the front door so they could leave.  After he unlocked the door, the men lingered in the entranceway.  Mr. Keene overheard one member of the group say “[s]ee him there.”  Shortly thereafter, one of the men pulled a gun from the waistband of his pants and fired several shots.  Mr. Ellison was hit by the gunfire and died before the police and ambulance arrived.  The shooter escaped.

[7]     Identification was the primary issue at trial.  Mr. Keene, who was standing approximately three feet away from the four men when the shooting took place, identified Mr. Blackman as the shooter.  When Mr. Keene called 911 shortly after the shooting, he told the authorities that he recognized the individual who shot Mr. Ellison and could identify him.  Three days later, Mr. Keene viewed a photo line-up and immediately identified Mr. Blackman as the assailant.  Mr. Keene stated that he had known the person in the photo for a “couple of years” and said “[w]ell I see him all the time. . . .  I see him all about.”  Mr. Keene also identified Mr. Blackman as the shooter at trial.

[8]     The Crown’s theory was that Mr. Blackman shot Mr. Ellison in retaliation for a July 2000 incident in which Mr. Ellison stabbed Mr. Blackman outside a sports bar in the Oakwood and Vaughan Road area of Toronto.  The Crown further alleged that Mr. Blackman, together with two other men, tried unsuccessfully to kill Mr. Ellison outside a strip club two months before the fatal shooting.  The Crown relied on the following evidence to link these two previous incidents to the fatal shooting.

2.1  The Stabbing Incident in July 2000

[9]     Ling Gao was working at the Piazza Sports Bar on Vaughan Road in July  2000.  Ms. Gao stated that, on the date of the alleged stabbing, a group of teenagers were playing pool, including a young man named George (Mr. Ellison’s given name).  She asked the group to leave because they were making too much noise.  At some point that afternoon, she was aware of two teenagers fighting outside.

[10] Just before 6:00 p.m., Mr. Blackman was stabbed outside the Piazza Sports Bar.  He flagged down a police car and told the officers that someone had stabbed him.  Mr. Blackman stated that he was unable to identify his assailant and refused to give a statement to the police.

[11] Ms. Gao testified at trial that several months later, when she read about Mr. Ellison’s death in the newspaper, she recognized the deceased in the picture as one of the teenagers who was playing pool at the sports bar on the date of the stabbing.

2.2  The Previous Attempt on Mr. Ellison’s Life in February 2001

[12] In February 2001, Mr. Ellison was attacked outside a strip club and received a superficial bullet wound to the head.  He managed to escape and flagged down a police car.  The police officer who was driving the vehicle testified that Mr. Ellison was obviously very frightened.  He told the officer that he had been attacked by five black men in dark clothing.

[13] After he was taken to the hospital, Mr. Ellison provided a statement to the police.  Mr. Ellison said that he was approached by two black males and a white male outside the strip club.  The white male was carrying a gun and one of the black men was carrying a knife.  The men attacked Mr. Ellison and the white male shot him.  After the police officer read the statement back to Mr. Ellison, he asked Mr. Ellison to sign it.  Instead of signing his name, Mr. Ellison wrote the words “[k]ill me” at the bottom of the statement.  When asked to explain what he meant by this, Mr. Ellison indicated that the men were going to kill him.

[14] The Crown adduced evidence at trial that after the murder, nine fired cartridge casings were recovered from the nightclub.  A firearms expert examined the casings along with six spent cartridge casings found near the strip club where Mr. Ellison was shot in February 2001.  The expert concluded that the cartridge casings from both incidents originated from the same gun.

2.3  Statements by the Deceased to His Mother

[15] The Crown sought to introduce evidence linking Mr. Blackman to the previous attempt on Mr. Ellison’s life in the form of statements made by the deceased to his mother, Ms. Freckleton, in the weeks leading up to his death.  Ms. Freckleton was available to testify at Mr. Blackman’s trial.  However, on the voir dire to determine the admissibility of the proposed evidence, both counsel were content to proceed with the hearing on the basis of a videotaped statement given by Ms. Freckleton to the police and a transcript of her evidence on the voir dire at Mr. Blackman’s preliminary inquiry.  The Crown also called two police officers to give evidence about an informal statement made by Ms. Freckleton to the police on the morning of her son’s murder.

[16] There were a number of inconsistencies in the various statements given by Ms. Freckleton about the precise content and timing of the statements allegedly made to her by her son.  However, the gist of her evidence was that Mr. Ellison told her after the February 2001 incident that there were three assailants and that the shooter was the brother of the person he stabbed the summer before over a debt arising from a pool game.  As she put it in her videotaped statement, Ms. Freckleton received a call from Mr. Ellison, who was at the hospital because he had been shot outside a strip club by two black men and a white man, “the guys whom he had the problem with at Vaughan Road who he stabbed”.  The two black men were brothers, he indicated, and the one who shot Mr. Ellison was “[t]he black one.  Not the one that he stabbed.”  She also stated that “[t]he one that he stabbed had a knife.  But the – the – the brother had a gun.”  When Ms. Freckleton asked him why he would not go to the police, he told her that the man he stabbed did not “tell” on him so he would not “inform on the guy”.

[17] In her testimony at the preliminary hearing, Ms. Freckleton was also questioned about her ongoing relationship with her son.  She stated that she and Mr. Ellison were at odds over his relationship with “Stammer”, a man who was known in the community to use young people to “push drugs” for him.  She also stated that, on two occasions, she contacted the police following disputes with her son.  On one such occasion, she asked Mr. Ellison to move out of the house, which he did.  The police report documenting the incident stated that Ms. Freckleton “was frustrated with having to put up with George and his disrespectful attitude and unruly behaviour”.

[18] Since there was nothing in Mr. Ellison’s statements to his mother revealing the identity of the person he had stabbed or the three men involved in the February 2001 shooting incident, Campbell J. sought direction from counsel during the voir dire on what evidence there was, if any, linking the proposed evidence to Mr. Blackman. Although there was no direct evidence about who had stabbed Mr. Blackman, the Crown informed the court that it was in evidence that Mr. Blackman was in fact stabbed in the Vaughan Road and Oakwood area in July 2000.  Therefore, Crown counsel submitted that the trier of fact would be asked to infer from the evidence at trial about this stabbing incident that Mr. Ellison was referring to Mr. Blackman in his statements to his mother when he spoke of the person he had stabbed and stated that this person had not told on him to the police.

3.  The Trial Judge’s Ruling on Admissibility

[19] Campbell J. began his analysis by reviewing the frailties in Ms. Freckleton’s evidence.  He noted that there was confusion regarding certain aspects of her testimony.  He also noted that her recollection of what she was told by her son may have been mixed with the many rumours she had heard in the community about the events.  However, the trial judge concluded that these concerns were only relevant to the ultimate reliability of the statements and could be tested by way of cross-examination.

[20] The trial judge then considered the necessity criterion for admitting hearsay statements under the principled approach.  He had no difficulty concluding that necessity was supplied by Mr. Ellison’s death.

[21] Turning to threshold reliability, the trial judge stated that “the declarant’s statement to his mother was not made under inherently unreliable circumstances”.  He concluded that there was nothing “inherently unreliable” about a young man who had just been shot telling his mother about the shooting and the events that precipitated it.  Although Mr. Ellison might have minimized the incident to calm his mother down, the information he conveyed to her would not have done so.  In fact, he had nothing to gain by recounting this story to his mother.  The trial judge concluded that it would be against Mr. Ellison’s interest to provide his mother with the information he did.  Moreover, it was consistent with the “code of silence” in the neighbourhood that the deceased told his mother more information than he told the police.

[22] With respect to the timing of the alleged statements, Campbell J. again noted that there was some ambiguity as to when the statements were made.  However, he concluded that even if Mr. Ellison’s statements were made several weeks after the shooting outside the strip club, “having regard to the unusual and attention-focusing nature of the event”, the statements were sufficiently contemporaneous “to provide some measure of reliability”.

[23] The trial judge noted that Mr. Ellison’s general veracity, lifestyle problems and criminal record were relevant only to the ultimate reliability of the statements.  However, Campbell J. did consider Mr. Ellison’s propensity to be untruthful with his mother in determining threshold reliability.  He concluded that although Mr. Ellison’s untruthfulness with Ms. Freckleton detracted from the reliability of the statements, it was “not conclusive”.  He was satisfied that the concerns regarding Mr. Ellison’s specific veracity to his mother and any possible motives to lie could be tested “at least indirectly” by cross-examining Ms. Freckleton.

[24] Finally, the trial judge rejected the defence’s argument that without evidence that it was Mr. Ellison who stabbed Mr. Blackman, Mr. Ellison’s statement was irrelevant.  He concluded that it was too early to say that there was no evidence linking the deceased to the stabbing of the accused, and that it would ultimately be a matter for the jury to decide.  He noted that the evidence could not be said to be “of trifling value, in an allegation of a revenge shooting such as this”, and that the jury should have as much relevant evidence as possible regarding the events that preceded the killing.  Campbell J. held that the probative value of the statements outweighed their prejudicial effect and ruled that all statements made by Mr. Ellison to his mother were admissible under the principled exception to the rule against hearsay.

4.  Court of Appeal for Ontario (2006), 215 C.C.C. (3d) 524

[25] Mr. Blackman appealed his conviction to the Court of Appeal for Ontario (MacPherson, Simmons and Cronk JJ.A.).  He argued that the trial judge erred in his instructions to the jury on eyewitness identification and in admitting Mr. Ellison’s out-of-court statements.  The court was unanimous in rejecting the first ground of appeal and the sole remaining issue concerned the admissibility of the deceased’s statements.

[26] Mr. Blackman argued that the trial judge erred in concluding that Mr. Ellison’s statements were sufficiently reliable to be admitted in evidence.  He also argued that the statements’ prejudicial effect outweighed their probative value.  In support of his position, Mr. Blackman advanced two principal submissions.  First, he contended that by focusing the analysis on whether Mr. Ellison’s statements were “inherently unreliable”, the trial judge applied the wrong legal test and shifted the onus to the accused to prove that Mr. Ellison had a motive to lie to his mother, rather than placing the onus on the Crown to show that Mr. Ellison had no motive to lie.  He submitted that this was the same type of reversible error identified by the Ontario Court of Appeal in R. v. Czibulka (2004), 189 C.C.C. (3d) 199.  Second, Mr. Blackman submitted that the trial judge erred by failing to treat Ms. Freckleton’s credibility and reliability as relevant to the threshold reliability analysis.

[27] Cronk J.A., writing for herself and MacPherson J.A., rejected both submissions.  She concluded that, while the trial judge may have misspoken, a reading of his ruling as a whole showed that he applied the correct legal test and did not commit any error on the question of motive as alleged.  Further, Cronk J.A.  was of the view that the trial judge properly considered the factors surrounding Mr. Ellison’s statements which substantially negated the possibility of inaccuracy and fabrication.  She also found that the trial judge was alive to the weaknesses in Ms. Freckleton’s evidence, but correctly concluded that Ms. Freckleton’s credibility was irrelevant to threshold reliability.

[28] Simmons J.A., writing in dissent, took issue with the majority’s finding that the reasons as a whole showed that the trial judge applied the proper test for admitting statements under the principled approach.  She concluded that the trial judge erred when he found that Mr. Ellison’s apparent lack of motive to fabricate supported the threshold reliability of his statements.  Since there was no evidence of a motive to fabricate, motive to lie was not a factor which tended to establish the reliability of the statement, but was rather a neutral factor in assessing threshold reliability.  Simmons J.A. also held that the trial judge erred by placing too much significance on the statements being against Mr. Ellison’s interest.  Finally, Simmons J.A. noted that the “major hearsay danger” in the case was Mr. Ellison’s veracity (para. 112).  The fact that the recipient of the hearsay statement was available to be cross-examined could not mitigate this danger because there was evidence that Mr. Ellison was not always truthful with his mother.  Simmons J.A. was not persuaded that the relative contemporaneity of the statements ameliorated the concerns about Mr. Ellison’s truthfulness.  She would have allowed the appeal, set aside Mr. Blackman’s conviction, and ordered a new trial.

5.  Analysis

[29]  The most basic principle of our law of evidence is that, as a general rule,  any information that is relevant to an issue in the case may be admitted in evidence.  Put differently, evidence may only be admitted if it relates logically to an issue in the case. Without this relationship, the proposed evidence, regardless of whether it is in hearsay form or not, has no probative value and is therefore inadmissible.  Given this cardinal principle, the trial judge rightly inquired into the relevance of the out-of-court statements during the voir dire.  Indeed, if the evidence is not relevant, there is no need to embark upon a voir dire at all.  One of the arguments advanced by the defence at the conclusion of the voir dire was that there was no evidence linking the person allegedly stabbed by Mr. Ellison to the accused.  Counsel argued that without such a link, Mr. Ellison’s out‑of-court statements were irrelevant.  Although this argument was not repeated before this Court, it is an important point that merits further comment.  Therefore, before addressing the issue of whether the trial judge was correct to admit Mr. Ellison’s statements under the principled approach to hearsay, I will deal with the question of threshold relevance.

5.1  Threshold Relevance

[30] Relevance can only be fully assessed in the context of the other evidence at trial.  However, as a threshold for admissibility, the assessment of relevance is an ongoing and dynamic process that cannot wait for the conclusion of the trial for resolution.  Depending on the stage of the trial, the “context” within which an item of evidence is assessed for relevance may well be embryonic.  Often, for pragmatic reasons, relevance must be determined on the basis of the submissions of counsel.  The reality that establishing threshold relevance cannot be an exacting standard is explained by Professors D. M. Paciocco and L. Stuesser in The Law of Evidence (4th ed. 2005), at p. 29, and, as the authors point out, is well captured in the following statement of Cory J. in R. v. Arp, [1998] 3 S.C.R. 339, at para. 38:

To be logically relevant, an item of evidence does not have to firmly establish, on any standard, the truth or falsity of a fact in issue.  The evidence must simply tend to “increase or diminish the probability of the existence of a fact in issue”.

[31] I will first consider how the out-of-court statements relate to issues in the case.  It was the Crown’s theory that Mr. Ellison’s murder was in retaliation for the July 2000 stabbing of Mr. Blackman.  When considered in context, the statements provide evidence that Mr. Ellison stabbed an unnamed individual with whom he was playing pool at a sports bar on Vaughan Road in July 2000.  They also identify that same individual and his brother as two of three men involved in the attempt made on Mr. Ellison’s life outside the strip club in February 2001, two months before Mr. Ellison was killed.  The involvement of the man stabbed by Mr. Ellison in the February 2001 shooting is significant because there is evidence that the same gun was then used in the fatal  shooting in April 2001.  Placing the man stabbed by Mr. Ellison at the scene of the February shooting therefore goes to the issue of motive and, in turn, to the issue of  identification.  It also supports the Crown’s theory that the second shooting was designed to effect the retaliation that was attempted unsuccessfully two months earlier.  The statements therefore provide evidence from which it may be inferred that the murder was planned and deliberate, both required elements to make out a case for first degree murder.  The out-of-court statements are therefore related to the issues of identification, motive, planning and deliberation.

[32] Mr. Ellison’s out-of-court statements are only relevant, however, if there is evidence to show that it was the accused who was stabbed by Mr. Ellison in July 2000, or if there is some evidence otherwise connecting the earlier incidents to Mr. Blackman.  Therefore, the trial judge in this case rightly asked counsel to explain how Mr. Ellison’s statements related to the accused — without some link between the two, the proposed evidence was not relevant to Mr. Blackman’s trial.  As stated earlier, relevance as a threshold for admissibility is easily made out.  After being informed by counsel that Mr. Blackman was in fact stabbed in the Vaughan Road and Oakwood area in July 2000 and that the jury would be asked to infer from all the evidence that Mr. Ellison was indeed referring to Mr. Blackman in his statements to his mother, nothing more was required.  The trial judge was thus correct to reject the defence’s argument on relevance on the basis that he did.  He stated as follows:

Having regard to the difficulties of knowing exactly what the street witnesses will say about the Vaughan Road July stabbing, it is too early to say there is no evidence to link the deceased with the stabbing of the accused.  It will be a matter for the jury to decide whether there is a link, and if so where its import may be in the overall context of the case.

5.2  The Principled Approach to Hearsay

[33] Mr. Ellison’s statements clearly constitute hearsay — the Crown seeks to adduce the out-of-court statements for the truth of their contents and Mr. Ellison cannot be cross-examined on what he told his mother about the identity of the men who shot him in February 2001.  Therefore, this evidence is presumptively inadmissible.  Mr. Ellison’s statements can only be admitted if they fall within one of the recognized exceptions to the rule against hearsay.  The Court must first look to the traditional exceptions:   R. v. Mapara, [2005] 1 S.C.R. 358, 2005 SCC 23, at para. 15.  It is undisputed that the proposed evidence does not fall under any of the traditional exceptions to the hearsay rule and that its admission is dependent upon the Crown establishing the twin criteria of reliability and necessity on a balance of probabilities.

[34] Necessity is obviously made out in this case.  If Mr. Ellison’s statements are to be adduced at all by the Crown, they can only be presented in hearsay form because of Mr. Ellison’s death.  It is not uncommon that courts have had to grapple with relevant hearsay statements made by the deceased victims of crime.  Indeed, some of the traditional exceptions were born out of the necessity of admitting evidence of this nature:  for example, dying declarations and spontaneous statements (including statements of present mental state, statements of present sense impression, and excited utterances).  The hearsay admissibility inquiry in this case therefore turns on the question of threshold reliability.

[35] The central underlying concern about the hearsay form of the proposed evidence is the inability to cross-examine Mr. Ellison on the truth and accuracy of his statements to his mother.  The trial judge’s role as gatekeeper is to determine whether this concern is sufficiently overcome in the circumstances of the case to justify receiving the evidence.  This criterion is usually met by showing that sufficient trust can be put in the truth and accuracy of the statements because of the way in which they came about, or by showing that in the circumstances the ultimate trier of fact will be in a position to sufficiently assess their worth.  The two ways of demonstrating threshold reliability are not mutually exclusive.

[36] The trial judge is well placed to determine the extent to which the hearsay dangers of a particular case are of concern and whether they can be sufficiently alleviated.  Accordingly, the trial judge’s ruling on admissibility, if informed by correct principles of law, is entitled to deference.  The court below was divided on whether the trial judge applied the correct test in this case.  As this issue impacts on the question of whether the trial judge’s ruling is entitled to deference, I will deal with it at the outset.

5.2.1  The Test Applied by the Trial Judge

[37]  The disagreement between the majority and the dissent arises from the trial judge’s repeated assertion during his oral ruling on the voir dire that there was nothing “inherently unreliable” about the evidence.  Because hearsay statements are presumptively inadmissible, what he should have asked is whether there was anything inherently reliable about the alleged statements that would warrant their admission.  Mr. Blackman argues that this language shows that the trial judge applied the wrong legal test and effectively reversed the onus.  The majority was satisfied that, while the trial judge “misspoke”, it was clear from a reading of the ruling as a whole that he ultimately applied the proper legal test (paras. 50-51).  Simmons J.A., in dissent, was of the view that the trial judge’s reasons did not demonstrate that he subsequently applied the proper test (para. 108).

[38] It is important that the trial judge start from the premise that hearsay statements are presumptively inadmissible and then search for indicia of trustworthiness sufficient to displace the general exclusionary rule.  Otherwise, the trial judge risks falling into error by reversing the onus.  Indeed, the majority of this Court concluded that such an error was effectively committed by the trial judge in R. v. Couture, [2007] 2 S.C.R. 517, 2007 SCC 28, at para. 85.  In the present case, however, I agree with the majority in the court below.  Although the comments about there being nothing “inherently unreliable” about the statements are cause for concern, these concerns are sufficiently alleviated when the comments are read in context.  It is apparent from the record that the trial judge was contrasting the circumstances in which the statements were made to Ms. Freckleton with those described in a ruling he made earlier that day, in which he ruled another hearsay statement inadmissible because of the presence of “many inherent indicia of threshold unreliability”.  In addition, and unlike the situation in Couture, it is apparent from a reading of the ruling in its entirety that the trial judge relied on relevant factors in admitting the statements.  Therefore, I am satisfied that the trial judge applied the correct test.  I read the balance of Simmons J.A.’s difficulties with the trial judge’s ruling as being related not so much to the question of whether he applied the correct test, but rather to his weighing of the various factors.  In particular, Simmons J.A. disagreed with the majority’s view on whether the trial judge had properly considered the question of motive, an issue to which I now turn.

5.2.2  The Question of Motive

[39]  Simmons J.A. was of the view that, much as in Czibulka, “the trial judge erred by founding his implicit conclusion that Ellison had no motive to fabricate on an absence of evidence of a motive to fabricate” (para. 106).  In Czibulka, the Court of Appeal for Ontario overturned the accused’s conviction for second degree murder based on the trial judge’s failure to distinguish between an absence of evidence of motive and evidence of an absence of motive in his assessment of threshold reliability.  Rosenberg J.A., in writing for the court, explained the distinction between the two concepts as follows (at para. 35):

It seems to me that it was fundamental to the trial judge’s conclusion about reliability that the deceased had “no apparent motive to lie”.  In my view, however, since there was little or no evidence of the circumstances under which the letter was written, the trial judge had no evidence that the deceased had no motive to lie.  The trial judge appeared to approach the question of fabrication by using the absence of evidence of fabrication to find that there was no evidence of a motive to fabricate.  There was nothing in the circumstances to justify this approach.  This was not a case like Khan, for example, where it was apparent from the circumstances as related by the mother that the declarant child had no motive to accuse the accused falsely.  The absence of evidence of motive to fabricate is not the same as evidence of the absence of motive to fabricate.  In fact, what evidence exists tells against the deceased having no motive to fabricate.  [Emphasis added.]

[40] The court in Czibulka added that where there is no evidence of a motive to lie, motive “is in effect a neutral consideration” (para. 43).

[41] The distinction between an “absence of evidence of motive to fabricate” and “evidence of absence of motive to fabricate”, if taken out of context, can be rather elusive.  It is therefore important to consider the Court of Appeal’s decision in Czibulka in context.  First, there was “little or no evidence” before the court about the circumstances surrounding the writing of the letter by the deceased.  In addition, the Court of Appeal was of the view that what evidence did exist supported the opposite conclusion on the question of motive.  Therefore, the trial judge’s finding that there was no motive to fabricate was held to be unreasonable and unsupported by the evidence.   Second, the trial judge’s decision on threshold reliability essentially turned on the finding that the deceased had no motive to lie in her letter about the accused’s alleged abusive conduct.  Therefore, since the decision on threshold reliability was without support in the evidence, the trial judge’s error on motive was decisive on appeal.

[42] There is no doubt that the presence or absence of a motive to lie is a relevant consideration in assessing whether the circumstances in which the statements came about provide sufficient comfort in their truth and accuracy to warrant admission.  It is important to keep in mind, however, that motive is but one factor to consider in the determining of threshold reliability, albeit one which may be significant depending on the circumstances.  The focus of the admissibility inquiry in all cases must be, not on the presence or absence of motive, but on the particular dangers arising from the hearsay nature of the evidence.  In Czibulka, the question of motive, in the circumstances of that case, was a very significant factor.  If the deceased had a motive to lie about the accused abusing her, the contents of her letter could not be relied on for their truth.  In other cases, motive may not feature so prominently.

[43] Here, the majority of the Court of Appeal concluded that, unlike in Czibulka, there was circumstantial evidence to support the inference that Mr. Ellison had no motive to lie to Ms. Freckleton.  I agree with the majority’s conclusion that, the trial judge considered the relevant factors in determining whether Mr. Ellison had a motive to fabricate, including the nature of the relationship between Mr. Ellison and his mother and the context in which the statements were made.  Among other factors, the trial judge noted that this was a case of a “shot and wounded” son telling his mother about the circumstances surrounding the shooting, an incident she already knew about from independent sources.  Mr. Ellison had nothing to gain by telling this story falsely to his mother.  As the trial judge put it, “[i]f he wanted to mislead her the easiest thing would be to say it was a stranger who shot him, thereby minimizing his own blameworthiness from the stabbing.”  Also, if he wanted to lie to his mother in order to alleviate her fears, linking his shooting to his own stabbing would achieve the opposite.  Hence, this was “hardly a factor that suggests unreliability and perhaps a factor that suggest[s] the opposite to some degree.”  The trial judge was further of the view that the statements were “contemporaneous enough, having regard to the unusual and attention-focusing nature of the event . . . to provide some measure of reliability.”  Finally, the trial judge held that “[h]aving regard to the code of silence testified to by Detective Prisor, there is an inherent plausibility and logical consistency in telling his mother more about the identity of the shooters than he told the police.”  In my respectful view, Simmons J.A. placed too much emphasis on the distinction drawn in Czibulka, a distinction which has no application on the facts here.

[44] In distinguishing Czibulka, the majority also noted that there were other indicia of reliability present including, as noted by the trial judge, that the statements were against Mr. Ellison’s interest.  In my view, it cannot be said that the statements were against interest in the hearsay sense of the term.  The statements would not satisfy the criteria of the traditional hearsay exception for declarations against interest.  There is also no suggestion in the evidence that Ms. Freckleton was inclined to go to the police and report that her son had stabbed someone the summer before.  That being said, however, I am not persuaded that the mischaracterization of this factor had any significant bearing on the trial judge’s ruling.

[45]  Simmons J.A. also found that the trial judge failed to consider factors which gave rise to apprehensions about the reliability of the statements.  Those factors included the fact that Mr. Ellison had recently been involved in a shooting (the alleged statement was either made while he was still in hospital or as much as 38 days later), and that he had previously lied to his mother about his activities, including the stabbing incident the previous summer.  In the circumstances, Simmons J.A. was of the view that it was just as likely that Mr. Ellison was again lying to cover up his activities as it was that he was telling the truth.  For example, he may have thought it would look better in the eyes of his mother if he was the victim of some retaliation — given that his mother already knew from people in the community that he had stabbed someone the previous summer — rather than admit that he was involved in a further altercation in which he was the aggressor.

[46] With respect, there is no reason to conclude that the trial judge did not consider these factors.  In fact, he specifically discussed Mr. Ellison’s “specific veracity to his mother” and its impact on threshold reliability.  Although the trial judge’s reasons are couched in terms of factors which go either to threshold or ultimate reliability, a distinction rejected by this Court in R. v. Khelawon, [2006] 2 S.C.R. 787, 2006 SCC 57,  I am not persuaded that the trial judge committed any error.  In my respectful view, Simmons J.A. engaged in a re-weighing of the factors considered by the trial judge.  In the absence of any error in principle, or a finding that the trial judge’s decision is unreasonable or unsupported by the evidence, there is no basis to interfere with the trial judge’s weighing of the various factors.

5.2.3  The Weaknesses in Ms. Freckleton’s Evidence

[47] One of the principal submissions advanced by Mr. Blackman in arguing against the admissibility of the statements at trial rested on the difficulties with Ms. Freckleton’s evidence.  It is apparent from a review of the evidence that there were inconsistencies in Ms. Freckleton’s evidence.  There was also evidence that Ms. Freckleton had received information from others about the stabbing incident.  The trial judge held that these factors had “nothing to do with the admission through her of the deceased’s alleged declarations” because she could be cross‑examined on the defects in her evidence.  The majority of the Court of Appeal was of the view that “[t]his holding is unimpeachable” (para. 72).  Cronk J.A. referred to R. v. Humaid (2006), 208 C.C.C. (3d) 43 (Ont. C.A.), at paras. 50‑51, in support of the proposition that the quality of the mother’s evidence was not relevant to threshold reliability.  Simmons J.A. was of the view that the trial judge placed too much emphasis on the fact that Ms. Freckleton was available for cross-examination (para. 109).

[48] In Humaid, it was argued that the recipient’s credibility and the reliability of her narration of the out-of-court statements militated against the admission of the hearsay evidence.  Doherty J.A., in writing for the court at para. 51, rejected this argument on two bases.  First, these factors “were not circumstances surrounding the making of those statements”.  Second, “[t]hreshold reliability stands as a substitute for cross-examination of the declarant not the narrator of the out-of-court statement.”  Since the recipient of the statement would have testified at trial, her credibility and reliability as they related to the out-of-court statements could be fully tested on cross-examination at trial.

[49] Doherty J.A.’s categorization of these factors as irrelevant because they  “were not circumstances surrounding the making of those statements” was based, of course, on this Court’s attempt in R. v. Starr, [2000] 2 S.C.R. 144, 2000 SCC 40, to label some factors categorically as going only to ultimate reliability (paras. 215-17).  As this Court explained in Khelawon, at paras. 50-55, this aspect of Starr created much  confusion in the law and that portion of the analysis in Starr was revisited by the Court holding that

the relevant factors to be considered on an admissibility inquiry cannot invariably be categorized as relating either to threshold or ultimate reliability.  Rather, the relevance of any particular factor will depend on the particular dangers arising from the hearsay nature of the statement and the available means, if any, of overcoming them.  [para. 55]

[50] However, the second reason given by Doherty J.A. for finding that issues concerning the recipient’s credibility did not go to the question of threshold reliability is based, not on an arbitrary categorization of factors, but on principle.  The fact that the recipient is available to be cross-examined does address “the particular dangers arising from the hearsay nature of the statement and the available means, if any, of overcoming them.”  Therefore, I conclude that the trial judge was correct in finding that the difficulties with Ms. Freckleton’s evidence were matters properly left to the ultimate trier of fact, as the Court of Appeal did in Humaid, because Ms. Freckleton was available to be cross-examined at trial.  The triers of fact were therefore in a position to fully assess the truthfulness and accuracy of her testimony.

[51] It is important to note that, in cases where the recipient of the out-of-court statement is not available for cross-examination, his or her credibility and truthfulness may play an important role in assessing the question of threshold admissibility.  Consider, for example, if the Crown sought to adduce the out-of-court statement of a jailhouse informant containing an alleged statement from the accused and the informant was not available to be cross-examined.  Difficulties with the recipient’s evidence would be relevant to the question of threshold reliability because the form in which the hearsay statement is “packaged” necessarily impacts on the jury’s ability to test the truth and accuracy of the declarant’s statements.  However, when the recipient is available for cross-examination, those difficulties can safely be left to the ultimate trier of fact to consider.  Doherty J.A. added an important caveat to the principle in Humaid, with which I agree.  He stated as follows:

There is one caveat to what I have said.  A trial judge has a residual discretion to exclude evidence where its potential probative value is exceeded by the potential prejudicial effect of that evidence.  This discretion extends to what would otherwise be admissible hearsay evidence:  R. v. Ferris (1994), 27 C.R. (4th) 141 (Alta. C.A.) at 155-56, aff’d, [1994] 3 S.C.R. 756; R. v. Starr, supra, at para. 188.  There may be cases where the credibility or reliability of the narrator of the out-of-court statement is so deficient that it robs the out-of-court statement of any potential probative value.  In such cases, and I think they would be relatively rare, a trial judge could conclude that the narrator’s evidence was so incredible or unreliable as to necessitate the exclusion of the evidence based on the exercise of his or her residual discretion.  If the evidence was tendered by the defence, the discretion could be exercised only where the potential prejudice substantially outweighed the potential probative value to the defence of the out-of-court statement: R. v. Seaboyer (1991), 66 C.C.C. (3d) 321 (S.C.C.) at 391; R. v. Arcangioli (1994), 87 C.C.C. (3d) 289 (S.C.C.) at 297; R. v. Starr, supra, at paras. 187-88.  I need not pursue this analysis as the trial judge did not purport to exclude Ms. Stevenson’s evidence as to Aysar’s statements by the exercise of that residual discretion. [para. 57]

[52] In conclusion, I do not see any error in principle with the trial judge’s ruling.  His decision is reasonable and supported by the evidence.  It is therefore entitled to deference.  Therefore, I would uphold the ruling that Mr. Ellison’s statements are admissible under the principled approach to hearsay.

5.3  Corroboration

[53] Before concluding, I would like to say a few words in response to counsel’s submissions at the hearing on the question of corroboration.  Both counsel argued that the analysis of threshold reliability may well have been different at trial with the benefit of  Khelawon’s clarification of the proper use to be made of corroborating or conflicting evidence on the admissibility voir dire.

[54] It is important to emphasize that Khelawon did not broaden the scope of the admissibility inquiry; it merely refocused it.  This Court held that the relevant factors to be considered on the admissibility inquiry should no longer be categorized as going either to threshold or ultimate reliability.  Rather, the Court stated that a functional approach should be adopted.  I repeat the words here:

As I trust it has become apparent from the preceding discussion, whether certain factors will go only to ultimate reliability will depend on the context.  Hence, some of the comments at paras. 215 and 217 in Starr should no longer be followed.  Relevant factors should not be categorized in terms of threshold and ultimate reliability.  Rather, the court should adopt a more functional approach as discussed above and focus 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. [para. 93]

[55] Hence, the Court clarified that in appropriate circumstances, a corroborative item of evidence can be considered in assessing the threshold reliability of a statement.  Consider, on the one hand, the hearsay statement of a complainant who asserts that she was repeatedly stabbed but has no injury to show in support.  The lack of corroborative evidence would seriously undermine the trustworthiness of the statement and, indeed, would likely be fatal to its admissibility.  On the other hand, an item of corroborative evidence can also substantiate the trustworthiness of a statement.  Recall the semen stain in R. v. Khan, [1990] 2 S.C.R. 531.  Where an item of evidence goes to the trustworthiness of the statement, Khelawon tells us that it should no longer be excluded simply on the basis that it is corroborative in nature.

[56] However, the Court in Khelawon also emphasized the important differences between threshold and ultimate reliability and the principle bears repeating.  Trial judges must be aware of the limited role they play in determining admissibility.  It is essential to the integrity of the fact-finding process that the question of ultimate reliability not be pre-determined on the admissibility voir dire:  see Khelawon, at para. 93.

[57] For example, Crown counsel in this case submitted that it would be a “shocking coincidence” for Mr. Ellison to have falsely implicated Mr. Blackman’s brother in the strip club shooting and then for Mr. Keene to identify Mr. Blackman as the man who killed the deceased.  The Crown offers as further “corroboration” the fact that the same gun was used in both the February and April incidents.  These items of evidence may indeed be supportive of the Crown’s theory that Mr. Blackman is the person who killed Mr. Ellison and that he did so in retaliation for the stabbing.  However, the items  of evidence can only take on this corroborative character when they are considered in the context of the evidence as a whole.  This kind of inquiry goes far beyond the trial judge’s role in determining whether Mr. Ellison’s statements to his mother that the shooter outside the strip club was the brother of the person he stabbed are sufficiently reliable to warrant admission.  The admissibility voir dire must remain focused on the hearsay evidence in question.  It is not intended, and cannot be allowed by trial judges, to become a full trial on the merits.

6. Disposition

[58] For the above reasons, I would dismiss the appeal.

Appeal dismissed.

Solicitors for the appellant:  Pinkofskys, Toronto.

Solicitor for the respondent:  Attorney General of Ontario, Toronto.