R v Khelawon

Facts

Ramnarine Khelawon was accused of aggravated assault, uttering a death threat, assault causing bodily harm, and assault with a weapon. The offences involved five residents of a nursing home, in which Khelawon worked as a registered nurse. Four of the alleged victims died before trial from unrelated causes. The fifth was found incompetent to testify. Two of the deceased complainants, Mr. Skupien and Mr. Dinino, had given videotaped statements to police, concerning the alleged incidents.

Since the declarants were deceased, the videotaped statements became hearsay, and the issue for the trial judge was whether or not the statements were reliable enough to be admitted.

Courts below

The trial judge, Grossi J., "...held that the hearsay statements from each of the complainants were sufficiently reliable to be admitted in evidence, based in large part on the 'striking' similarity between them". Khelawon was convicted.

The Court of Appeal for Ontario allowed Khelawon's appeal. Justice Rosenberg (Justice Armstrong concurring) rejected the statements, while Justice Blair (dissenting) would have admitted the statements and dismissed the appeal. The Crown sought leave to appeal to the SCC to restore Khelawon's convictions. Leave to appeal was allowed in respect of Mr. Skupien's statement, but denied in respect of Mr. Dinino's statement.

Supreme Court of Canada

Justice Charron delivered the SCC's unanimous decision. The Court held that Mr. Skupien's statement was inadmissible, as it was not sufficiently reliable. In delivering the Court's decision, Justice Charron rendered a major alteration to the threshold reliability branch of the principled approach, effectively overruling this portion of R. v. Starr.

In particular, the bar that Starr erected on the use of corroborative evidence in the threshold reliability assessment no longer applies. Instead of categorizing reliability factors into discreet, non-mutually exclusive threshold and ultimate stages, courts should now "adopt a more functional approach... 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". In effect, trial judges may now consider evidence going beyond the circumstances under which the statement was made at the threshold reliability stage, which includes corroborative and/or conflicting evidence.