On Sept. 25, 2024, Supreme Court Justice Mary Moreau, backed by Justices Andromache Karakatsanis, Sheilah Martin and Mahmud Jamal, allowed the appeal of Yves Caleb Jr. Charles, who was convicted in the Quebec courts below of assault with a weapon, using an imitation firearm in the commission of assault, and uttering threats during a Feb. 24, 2016, incident at a school then attended by the appellant and the complainant: R. v. Charles, 2024 SCC 29.
Supreme Court of Canada Justice Mary Moreau
After giving his written statement to police, K.A. later refused to co-operate with the Crown, testifying at the trial that he remembered nothing of the incident. However, in the trial judge’s view, K.A.’s out-of-court statement had features of substantive reliability in light of the corroborative evidence in the case and the circumstances in which the statement had been made.
The appellant’s convictions and the trial judge’s decision to admit the out-of-court statement into evidence was upheld by two of three judges on the Quebec Court of Appeal panel, who dismissed the defence appeal: Charles v. R., 2022 QCCA 1013.
At the Supreme Court of Canada, the seven-judge panel split over whether to allow the appellant’s as-of-right appeal, but all of them followed the analytical approach — previously set out by Justice Karakatsanis in R. v. Bradshaw, 2017 SCC 35 — which guides trial judges in deciding whether the criteria for corroborative evidence are met and may be relied on to establish the threshold reliability of a hearsay statement.
In dissent, Justice Suzanne Côté (who dissented in Bradshaw) and Justices Nicholas Kasirer and Malcolm Rowe would have dismissed the appeal as they agreed with the Quebec Court of Appeal’s majority that there were no reviewable errors in the trial judge’s decision to admit into evidence K.A.’s out‑of‑court statement under the principled exception to the rule against hearsay, which took into account the discovery of weapons at the witness’s residence as corroborative evidence in the assessment of threshold reliability.
For the majority’s part, Justice Moreau ruled that the trial judge erred in finding that the witness’s out‑of‑court statement had the required indicia of reliability for admitting the statement into evidence at trial. The results of a police search of K.A.’s residence did not meet the Bradshaw criteria for corroborative evidence, the majority held. Nor did the circumstances surrounding the out-of-court statement support a finding that its threshold reliability was established.
Speaking unanimously on a secondary issue, the top court’s majority and minority agreed that the Quebec Court of Appeal’s majority should not have relied on the complainant’s trial testimony that was tendered outside the voir dire to hold that the threshold reliability of K.A.’s statement was established. Rather, the top court held that the curative proviso in s.686(1)(b)(iii) of the Criminal Code is the appropriate mechanism for considering, on appeal, evidence admitted at trial that was not produced in the voir dire.
The case arose on Feb. 24, 2016, at the school then attended by the appellant, Yves Caleb Jr. Charles; the witness, K.A.; and the complainant. At the judge-alone trial, the prosecution called K.A., the complainant, a police officer and a rehabilitation counsellor who worked at the school. The accused testified in his own defence.
According to the complainant’s testimony, while washing his hands in a school bathroom, he felt something on his hip. When he turned around, he saw that it was a pistol held by the appellant, which was being used to threaten him. K.A. and another student were also present. When the complainant asked if the pistol “was a real one,” the appellant replied, “Do you want to see if it’s a real one? I think I have a bullet left in it.” K.A. and the second witness later caught up with the complainant and told him that the firearm was a fake.
Because K.A. testified he had no recollection of the incident, the Crown requested a voir dire, seeking to admit into evidence K.A.’s written statement to police during an hour of questioning the day after the incident. Among other things, K.A. stated that he had two pellet pistols, which police then found at K.A.’s residence.
In admitting K.A.’s out‑of‑court statement into evidence, the trial judge concluded that the only likely explanation for the statement was its truthfulness as to its material aspects, given the circumstances under which the statement was made and the seizure of pistols, which the judge considered to be corroborative evidence. (Corroborative evidence is evidence that reinforces other evidence.)
In finding the accused guilty of the three charges, the trial judge accepted the complainant’s version of events, supported by a surveillance video and K.A.’s out-of-court statement.
Justice Moreau said the central issue to be determined in the defence’s appeal was “whether the trial judge erred in finding that the witness’s out‑of‑court statement had the indicia of reliability required according to the principles set out in our jurisprudence.”
“This determination affords us an opportunity to reaffirm the principles laid down in Bradshaw,” Justice Moreau wrote.“I agree with the dissenting Court of Appeal judge that the trial judge erred in admitting the witness’s statement in writing into evidence at trial. The results of the search subsequently conducted at the witness’s residence do not meet the Bradshaw criteria for corroborative evidence. Because the Crown sought to use the witness’s statement to establish the appellant’s role in the events, it was required to show that the search results confirmed that aspect of the statement. As for the circumstances surrounding the statement, they do not support a finding that threshold reliability is established.”
Justice Moreau noted that hearsay can only exceptionally be admitted into evidence when the party tendering it demonstrates that the twin criteria of necessity and threshold reliability are met on a balance of probabilities. “At the threshold reliability stage, one can only rely on corroborative evidence if it shows, when considered as a whole and in the circumstances of the case, that the only likely explanation for the hearsay statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement,” she explained. “In the absence of a connection between the corroborative evidence and the aspect sought to be proved, the evidence is quite simply of no assistance in determining whether that specific aspect is true or accurate; it merely corroborates the declarant’s credibility, the accused’s guilt or one party’s theory of the case, which is not sufficient.”
Justice Moreau explained that “the combined effect of the corroborative evidence and the circumstances of the case, not the evidence taken in isolation, must rule out plausible alternative explanations for the material aspects of the statement. The absence of leading questions, inconsistent statements, promises of benefit or a criminal lifestyle simply points to an absence of factors that, if present, would detract from an otherwise trustworthy statement.”
In this case, Justice Moreau said the Crown had to show that the results of the search confirmed the accused’s role in the events if the prosecution was seeking to use K.A.’s out-of-court statement to establish the accused’s degree of involvement in the incident, as well as the use of the weapon.
Yet there is “no connection between the discovery of the pistols and the accused’s degree of involvement,” she reasoned. “The location of the pistols therefore cannot serve to show that threshold reliability is established through that aspect of the statement alone. Aside from establishing the truth of that aspect of the statement, that evidence is not capable of ruling out plausible alternative explanations for the events.”
Justice Moreau added that K.A.’s statement raised “particular reliability concerns.”
Because K.A. “is an accomplice, there is a very real danger that he tried to shift his responsibility onto the accused in his statement,” Justice Moreau said. “It was to the witness’s advantage to provide an account that limited his participation to possession of the weapons, avoiding the charges that involved a greater degree of participation. In the absence of external evidence confirming that the accused played the primary role in the washroom, the circumstantial guarantees cannot overcome the dangers presented by the witness’s statement.”
Justice Moreau held that the indicia of substantive and procedural reliability “do not support the admissibility of K.A.’s out‑of‑court statement.”
“It cannot be said that cross‑examining K.A. at the time he made his statement to the police would have added little if anything to the process,” she observed. “There are many aspects of the statement that, without cross‑examination, remain impossible to verify,” the judge noted. “There remains a real concern regarding the truthfulness of the statement given the opportunity that K.A. had to minimize his responsibility and to exaggerate the appellant’s. The indicia of reliability do not rule out this possibility.”
The majority concluded that the combined effect of the corroborative evidence and the circumstances did not overcome the specific hearsay dangers raised by the out‑of‑court statement, such that the only likely explanation was K.A.’s truthfulness about, or the accuracy of, the material aspects of the statement.
Writing jointly, in a dissent endorsed by Justice Rowe, Justices Côté and Kasirer held that the trial judge made no reviewable error in taking the discovery of the weapons at K.A.’s residence into account as corroborative evidence in the assessment of threshold reliability.
“Given the charges laid and the burden they entailed for the prosecution, there is indeed a logical connection between the aspect of the statement pertaining to the presence of the weapon in the washroom, corroborated by the discovery of the weapon at the witness’s residence, and the aspect of the statement pertaining to the handling of that same weapon by the accused at the same time and in the same location,” the minority said.
“Such a logical connection makes it possible, in the assessment of threshold reliability, to consider corroborative evidence that does not relate to all of the material aspects of a statement,” Justices Côté and Kasirer wrote. “Threshold reliability can be established through the combined effect of the corroborative evidence and the circumstances that constitute indicia of reliability, as those circumstances make remedying the insufficiency of the corroborative evidence possible.”
Counsel were not immediately reached for comment.
Photo of Justice Mary Moreau: SCC Collection
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