The Power of Perspectives

The Canadian Bar Association

Justin Ling

Admitting hearsay evidence

November 3 2016 3 November 2016


How good is the word of a snitch?

That’s the question that the Supreme Court of Canada is wrestling with today, as it hears oral arguments in R. v. Bradshaw.

The case could determine how criminal courts deal with the principled exception for hearsay evidence.

In this case, police suspected Robert Bradshaw and Roy Thielen in a pair of murders in British Columbia. Police collected evidence on the dual murder plot stemming from a Mr. Big operation run on Thielen, and clandestine audio records used to eavesdrop on conversations between the two men. They also eventually obtained confessions from Thielen.

But when Bradshaw’s case got to trial, Thielen refused to testify. So police entered into evidence a DVD of Thielen re-enacting the murders for police, claiming a “principled exception” to the rule forbidding hearsay.

The trial judge found Thielen’s previous statements to be admissible, as well as the video of the re-enactment. He concluded that Thielen had no reason to lie, and that the testimony was consistent with other evidence. He also concluded that Bradshaw’s own words, uttered under a Mr. Big sting, backed up Thielen’s testimony (though Bradshaw, in turn, Thielen coached him to say those things.)

While defense counsel would have a shot at going after Thielen’s credibility, and a chance to cross-examine the police officers who dealt with him, they would not be able to cross-examine the supposed co-conspirator.

The BC Court of Appeal concluded that cross-examining the recipient of a statement (the police) does not remedy the fact that the defense counsel can’t cross-examine the author of those statements, and that the body of evidence was not so compelling that it fully supported the hearsay. It allowed the appeal.

The case has attracted attention from both the Criminal Lawyers’ Association of Ontario, represented at the Supreme Court by Gowling’s Jeffrey Beedell, and the BC Civil Liberties Association, with Marcus Klee from Aitken Klee.

The CLA writes in their brief that, “while a wholesale revision of threshold reliability is unnecessary, this Court should re-affirm and re-focus the inquiry on the particular dangers posed by hearsay statements.”

Similarly, the BCCLA is arguing that the court doesn’t need “a bright line rule rendering all post-offence hearsay statements from accomplices inadmissible.” Instead, the BCCLA  “submits that independent corroborating evidence that establishes that a crime has been committed and connects or tends to connect the accused to the crime, should be required as it provides the necessary level of scrutiny to respond to the particular reliability dangers presented by this evidence.”

Ultimately, the Supreme Court is going to have to revisit the rules around principled exception, paving a new road for how hearsay makes its way into the courtroom — or doesn’t.



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