R. v. S.S.
- Citation
- 2023 SCC 1
- Status
- Judgment
- Jurisdiction
- Canada
- Court
- Supreme Court of Canada
- Decision
- 10 January 2023
- Posture
- Criminal Appeal / Appeal to the Supreme Court of Canada (on Appeal From the Ontario Court of Appeal)
- Language
- English
More details
- Court
- Supreme Court of Canada
- Decision
- 10 January 2023
- Posture
- Criminal Appeal / Appeal to the Supreme Court of Canada (on Appeal From the Ontario Court of Appeal)
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The Supreme Court allowed the appeal and restored the conviction, concluding the trial judge did not commit reversible error in admitting the victim's unsworn videotaped police statement under the principled exception to the hearsay rule; the admission and resulting conviction were reinstated on the basis of the reasons adopted from the dissent at the court below.
Court disposition
Appeal allowed; conviction restored.
Orders
- Appeal allowed
- Conviction restored
- Order of acquittal set aside
02
Material facts
Parties
His Majesty The King
Appellant Counsel: Michael S. DunnS.S.
Respondent Counsel: Jeff Marshman; Ingrid GrantCriminal Lawyers' Association (Ontario)
Intervener Counsel: Maija Martin; Nicola LangilleCriminal Trial Lawyers' Association
Intervener Counsel: William J. van Engen; Deborah R. HatchAmounts and remedies
- Docket Number: 40,147
03
Procedural history
Posture
Criminal Appeal / Appeal to the Supreme Court of Canada (on Appeal From the Ontario Court of Appeal)
04
Questions and positions
Legal issues
- 01
Whether the trial judge erred in conducting the threshold reliability analysis for hearsay evidence
- 02
Whether an unsworn videotaped police statement of a child witness was admissible under the principled exception to the hearsay rule
- 03
Whether the absence of contemporaneous cross-examination and the existence of procedural or substantive substitutes affect admissibility
- 04
Whether a finding that the witness lacked motive to fabricate can support threshold reliability
Party arguments
- Applicant
- Crown submitted the trial judge properly applied the principled exception, found necessity because the child could not testify without trauma, made a legitimate finding that the statement was reliable (including that the witness lacked motive to fabricate), and that the statement was therefore admissible.
- Respondent
- Accused argued the trial judge failed to tailor the threshold reliability analysis to the specific hearsay dangers, failed to assess whether procedural or substantive substitutes for contemporaneous cross-examination could address those dangers, and improperly relied on a positive finding of no motive to fabricate to support admission.
05
Court’s reasoning
Legal principles
- 01
Principled exception to the hearsay rule (Supreme Court jurisprudence)
Hearsay admissibility requires a principled approach assessing necessity and threshold reliability
- 02
Common law principles as applied by appellate courts
The role of contemporaneous cross-examination in testing reliability must be considered and, where absent, courts must determine whether procedural or substantive substitutes exist
- 03
Evidentiary assessment in criminal trials
Findings about motive to fabricate are relevant to reliability but cannot alone substitute for assessing the effects of absent cross-examination
06
Ratio, limits and disposition
Ratio decidendi
The Supreme Court allowed the appeal and restored the conviction, concluding the trial judge did not commit reversible error in admitting the victim's unsworn videotaped police statement under the principled exception to the hearsay rule; the admission and resulting conviction were reinstated on the basis of the reasons adopted from the dissent at the court below.
Obiter and limits
- Appellate courts must be cautious before overturning trial judges' assessments of witness reliability absent clear error
- Trial judges should be attentive to specific hearsay dangers and explicitly consider whether substitutes for cross-examination exist
Court disposition
Appeal allowed; conviction restored.
- Appeal allowed
- Conviction restored
- Order of acquittal set aside
Source and reliance status
Supreme Court of Canada · 10 January 2023
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Supreme Court of Canada
Judgment· 10 January 2023
R. v. S.S. Collection Supreme Court Judgments Date 2023-01-10 Neutral citation 2023 SCC 1 Report [2023] 1 SCR 3 Case number 40147 Judges Wagner, Richard; Karakatsanis, Andromache; Côté, Suzanne; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas; O’Bonsawin, Michelle On appeal from Ontario Notes SCC Case Information Decision Content
SUPREME COURT OF CANADA Citation: R. v. S.S., 2023 SCC 1, [2023] 1 S.C.R. 3 Appeal Heard: January 10, 2023 Judgment Rendered: January 10, 2023 Docket: 40147 Between: His Majesty The King Appellant and S.S. Respondent - and - Criminal Lawyers’ Association (Ontario) and Criminal Trial Lawyers’ Association Interveners Coram: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer and O’Bonsawin JJ. Judgment Read By: (para.
1) Wagner C.J. Majority: Wagner C.J. and Karakatsanis, Côté, Martin, Kasirer and O’Bonsawin JJ. Dissent: Rowe J. His Majesty The King Appellant v. S.S. Respondent and Criminal Lawyers’ Association (Ontario) and Criminal Trial Lawyers’ Association Interveners Indexed as: R. v. S.S. 2023 SCC 1 File No.: 40147. 2023: January 10. Present: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer and O’Bonsawin JJ. on appeal from the court of appeal for ontario Criminal law — Evidence — Admissibility — Hearsay — Threshold reliability — Accused charged with sexual offences against young niece — Child psychologist concluding that niece could not testify at trial because it would be too traumatizing — Trial judge admitting niece’s unsworn videotaped police statement into evidence at trial by application of principled exception to hearsay rule — Accused convicted and appealing on basis that trial judge erred in threshold reliability analysis and in admitting statement — Majority of Court of Appeal setting aside conviction and entering acquittal — Majority holding that trial judge erred in failing to tailor threshold reliability analysis to specific hearsay dangers at play and to determine whether there were procedural or substantive substitutes for contemporaneous cross-examination that could overcome dangers — Majority also holding that trial judge erred in making positive finding that
niece had no motive to fabricate and using finding to support reliability of statement — Dissenting judge concluding that trial judge was alive to role of cross-examination in threshold reliability analysis and that his reasons convincingly address procedural and substantive reliability — Dissenting judge also concluding that trial judge was entitled to conclude that niece’s police statement was not deliberate untruth — Conviction restored. APPEAL from a judgment of the Ontario Court of Appeal (Feldman, MacPherson and Thorburn JJ.A.), 2022 ONCA 305, 161 O.R. (3d) 641, 414 C.C.C. (3d) 56, [2022] O.J. No. 1841 (QL), 2022 CarswellOnt 5175 (WL), setting aside the conviction entered by Gray J., 2017 ONSC 5459, [2017] O.J. No. 4840 (QL), 2017 CarswellOnt 14644 (WL), and entering an acquittal. Appeal allowed, Rowe J. dissenting. Michael S. Dunn, for the appellant. Jeff Marshman and Ingrid Grant, for the respondent. Maija Martin and Nicola Langille, for the intervener the Criminal Lawyers’ Association (Ontario). William J. van Engen and Deborah R. Hatch, for the intervener the Criminal Trial Lawyers’ Association. The judgment of the Court was delivered orally by [1] The Chief Justice — A majority of this Court would allow the appeal, substantially for the reasons of the dissenting judge, MacPherson J.A. Justice Rowe would dismiss the appeal, substantially for the reasons of the
majority of the Court of Appeal. Therefore, the appeal is allowed and the conviction is restored. Judgment accordingly. Solicitor for the appellant: Ministry of the Attorney General — Crown Law Office, Criminal, Toronto. Solicitors for the respondent: Grant and Marshman, Toronto. Solicitors for the intervener the Criminal Lawyers’ Association (Ontario): Martin Barristers, Toronto; Yellowknife Legal Aid Clinic, Yellowknife. Solicitors for the intervener the Criminal Trial Lawyers’ Association: Bottos Law Group, Edmonton; Deborah R. Hatch Criminal Law, Edmonton.
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