Khelawon is interesting for a number of reasons. To begin with, the Court really pushes the notion that hearsay is defined using a functional analysis. Defining hearsay has often been a confusing and confused exercise, but an important one nonetheless because if evidence can be defined as non-hearsay it avoids the prima facie exclusionary rule. The functional approach, which was initiated by the Court in the 2000 decision in Starr, is a welcome one. Evidence that exhibits the dangers that the hearsay rule is meant to avoid (primarily, lack of reliability) will be defined as hearsay. This change in approach will mean little in most cases but it will result in a fairer approach in those instances where there is some debate as to whether the evidence in question should be classified as hearsay. If there is a real concern regarding reliability, the statement will be more likely to be classified as hearsay and its proponent will have to justify its admission.

The most important change wrought by Khelawon, however, is the Court's decision to overrule earlier pronouncements in Hawkins and Starr to the effect that only factors immediately surrounding the making of the hearsay statement can be taken into account in determining whether the evidence is sufficiently reliable to justify its admission. This restrictive approach never made much sense and was never the subject of careful analysis in these earlier judgements. Gauging reliability is usually the central issue in assessing whether hearsay is admissible under the principled exception, and surely there are many instances where factors not immediately surrounding the statement are important in making this assessment. Moreover, while the Court had claimed that external factors were irrelevant in these earlier cases, in other judgments it had clearly looked to external factors in deciding whether threshold reliability was established. For instance, many cases look at whether the declarant has a motive to lie, something that often requires a review of matters extending beyond the making of the statement (see, e.g., Smith). Other cases looked to forensic evidence that corroborated in a material way the declarant's statement (see, e.g., Khan) or striking similarity between the statement in issue and a statement made at an earlier or later time by another person (see, e.g., U.(F.J.).

In short, the Court's position as to whether external factors could be relied upon in assessing reliability was inconsistent, and was the subject of much deserved criticism by many commentators. For years, Justice Rosenberg of the Ontario Court of Appeal had been drawing attention to the unsatisfactory state of the law in speeches, and in Khelawon he launched into an extensive review of the problem. It was his judgement, and the dissent by Justice Blair, in the Ontario Court of Appeal, that set the stage for the judgment of Justice Charron in the Court above.

It is all well and good that Khelawon has clarified the law in this area. The approach taken by Justice Charron is certainly logical. But some concerns nonetheless arise. In particular, extending the range of factors that may be relevant in assessing the reliability of hearsay statements raises the spectre of longer and more complicated pre-trial applications in this area. It is not fanciful to suggest that in some cases much of the trial evidence may have to be led by the parties at the pre-trial application in order to assess fully the reliability issue. At GFN, some of us have always thought that this practical consideration - saving trial time - was the best justification for the restrictive rule set out in Hawkins and Starr. Now that the restriction is gone, the problems of unwieldy proceedings and resulting delay may arise. What's better, a confusing and illogical rule or a more streamlined pre-trial process? The Court in Khelawon has weighed in against the former but has not considered the latter (at least not expressly). Hopefully it will not be surprised by the result.