Hearsay 5: General Hearsay 5: General ExceptionException

Where we are at: Starr Where we are at: Starr (SCC)(SCC)

• Rule #1Rule #1

Hearsay evidence is presumptively Hearsay evidence is presumptively inadmissible unless it falls under an inadmissible unless it falls under an exception to the hearsay rule.exception to the hearsay rule.

• Rule #2Rule #2

The traditional exceptions to the The traditional exceptions to the Hearsay Rule remain presumptively Hearsay Rule remain presumptively in place.in place.

Challenging the ExceptionChallenging the Exception

• Rule #3Rule #3

A hearsay exception can be challenged to A hearsay exception can be challenged to determine whether it is supported by determine whether it is supported by indicia of necessity and reliability, required indicia of necessity and reliability, required by the principled approach.by the principled approach.

The exception can be modified to bring it The exception can be modified to bring it into compliance.into compliance.

Challenging the Evidence, Not Challenging the Evidence, Not the Exceptionthe Exception

• Rule #4Rule #4

In “rare cases”, evidence falling within In “rare cases”, evidence falling within an existing exception may be an existing exception may be excluded because the indicia of excluded because the indicia of necessity and reliability are lacking necessity and reliability are lacking in the particular circumstances of the in the particular circumstances of the case.case.

• Rule #5Rule #5

If hearsay evidence does not fall If hearsay evidence does not fall under a traditional known exception, under a traditional known exception, it may still be admitted if necessity it may still be admitted if necessity and reliability are made out, on a and reliability are made out, on a Balance of Probabilities, on a Balance of Probabilities, on a voir voir dire.dire.

• In the event of a conflict between the In the event of a conflict between the traditional exceptions and the traditional exceptions and the principled exception, the principled principled exception, the principled exception prevails.exception prevails.

AnalysisAnalysis

• Therefore our analysis of any Hearsay problem is as Therefore our analysis of any Hearsay problem is as follows:follows:

(a)(a) Identify the impugned evidence as Hearsay or not Identify the impugned evidence as Hearsay or not Hearsay.Hearsay.

(b)(b) If Hearsay, analyze admissibility against the If Hearsay, analyze admissibility against the specific/traditional exceptions which may apply. If specific/traditional exceptions which may apply. If one is found to apply, analysis ends, evidence is one is found to apply, analysis ends, evidence is admissible (subject to a Starr challenge to the admissible (subject to a Starr challenge to the exception itself, or its application in the particular exception itself, or its application in the particular case).case).

(c)(c) If no specific exception applies, analyze the If no specific exception applies, analyze the admissibility of the evidence against the dual admissibility of the evidence against the dual requirements of the general exception.requirements of the general exception.

Note on Starr challengeNote on Starr challenge

• Where hearsay evidence is admissible Where hearsay evidence is admissible under a traditional exception, the onus is under a traditional exception, the onus is on the on the challenger to the exceptionchallenger to the exception or its or its application in this case to show a lack of application in this case to show a lack of necessity and reliability.necessity and reliability.

• This is a reversal of the usual onus which This is a reversal of the usual onus which makes the proponent responsible for makes the proponent responsible for bringing the evidence within the exception.bringing the evidence within the exception.

NecessityNecessity

• The first requirement under the The first requirement under the general exception. general exception.

• This requirement This requirement must be met for must be met for the general exception to be the general exception to be made out.made out.

NecessityNecessity

• Necessity addresses the issue of the Necessity addresses the issue of the source of the evidence.source of the evidence.

• It asks the proponent to demonstrate, on It asks the proponent to demonstrate, on a balance of probabilities, why the a balance of probabilities, why the evidence must be received in this manner evidence must be received in this manner (through a hearsay source), without the (through a hearsay source), without the source of the testimonial value before the source of the testimonial value before the Court.Court.

ExamplesExamples

(a)(a)Necessity includes physical unavailability Necessity includes physical unavailability of the witness: death, illness preventing of the witness: death, illness preventing testimony,moved, absconded, unknown testimony,moved, absconded, unknown whereabouts etc.whereabouts etc.

(b)(b)Necessity includes the unavailability of Necessity includes the unavailability of testimony, not only the unavailability of testimony, not only the unavailability of the witness: e.g. unwilling witness, the witness: e.g. unwilling witness, retracting witness.retracting witness.

Necessity: ExamplesNecessity: Examples

(c) Necessity can even be met when the source (c) Necessity can even be met when the source of the testimonial value is available and of the testimonial value is available and willing, even where they actually take the willing, even where they actually take the stand, but are, for example, unhelpful with stand, but are, for example, unhelpful with respect to the statement proferred: e.g. the respect to the statement proferred: e.g. the Ares v. Venner Ares v. Venner nurse who relies on her notes; nurse who relies on her notes; the child witness who is competent, but does the child witness who is competent, but does not presently remember the events, but did not presently remember the events, but did earlier describe the events to others, who are earlier describe the events to others, who are called to repeat same as an exception to the called to repeat same as an exception to the hearsay rule.hearsay rule.

Necessity: ExamplesNecessity: Examples

(d) Actual or real, apprehended trauma for a (d) Actual or real, apprehended trauma for a particular witness: e.g. child or other particular witness: e.g. child or other psychologically fragile witness, due to the psychologically fragile witness, due to the person or circumstances. (Note: are there person or circumstances. (Note: are there other ways we can deal with these other ways we can deal with these concerns?)concerns?)

(e) Incompetence: mental incompetence (e) Incompetence: mental incompetence (Khan), or spousal incompetence (Hawkins) (Khan), or spousal incompetence (Hawkins)

Necessity: what its not.Necessity: what its not.

• Fear or disinclination to testify.Fear or disinclination to testify.

• Proponent simply prefers the evidence come in this Proponent simply prefers the evidence come in this way, with no real attempt at finding source of way, with no real attempt at finding source of testimonial value or bringing them to the Court; testimonial value or bringing them to the Court; interviewing and preserving their evidence in interviewing and preserving their evidence in appropriate circumstances; or source witness not appropriate circumstances; or source witness not asked on the stand about the statement, but asked on the stand about the statement, but proponent explores the statement with other proponent explores the statement with other witnesses. Point: tactical decisions do not make out witnesses. Point: tactical decisions do not make out necessity.necessity.

Necessity: What its NotNecessity: What its Not

• Necessary is not “necessary to the Necessary is not “necessary to the proponent’s case.” It is the unavailability proponent’s case.” It is the unavailability of the declarant’s testimony.of the declarant’s testimony.

• Unavailability of the witness is one Unavailability of the witness is one factor, not the determinative factor or factor, not the determinative factor or even a necessary condition.even a necessary condition.

Necessity: Specific Procedural Necessity: Specific Procedural RulesRules

• If mental incompetence of the source If mental incompetence of the source witness is the basis for the suggested witness is the basis for the suggested “unavailability”, the source witness, “unavailability”, the source witness, in general, should be called on the in general, should be called on the voir dire voir dire for the TOL to make its own for the TOL to make its own determinationdetermination..

Necessity: Specific Procedural Necessity: Specific Procedural RulesRules

• Medical evidence may be called to Medical evidence may be called to establish unavailability, even where establish unavailability, even where the source witness is not called on the source witness is not called on the the voir dire.voir dire.

Necessity: Specific Procedural Necessity: Specific Procedural RulesRules

• Some courts have held that the Some courts have held that the proponent must make reasonable proponent must make reasonable efforts to bring the source witness to efforts to bring the source witness to Court, or necessity may not be made Court, or necessity may not be made out. out.

Necessity: Can be Statement Necessity: Can be Statement SpecificSpecific• R. v. KhanR. v. Khan versus versus Khan (No. 2), College of Physicians Khan (No. 2), College of Physicians

and Surgeonsand SurgeonsCriminal Trial: child complainant determined Criminal Trial: child complainant determined

incompetent to testify. Out-of-court statements incompetent to testify. Out-of-court statements regarding event made to mother and others regarding event made to mother and others admitted.admitted.

Disciplinary Hearing: child now competent, but has little Disciplinary Hearing: child now competent, but has little recollection of event and out-of-court declarations. recollection of event and out-of-court declarations. Held: necessity made out, in the sense of necessary Held: necessity made out, in the sense of necessary to get the child’s version before the Court in all of its to get the child’s version before the Court in all of its detail, but not all statements to all persons detail, but not all statements to all persons admissible. Those more proximate to event admitted, admissible. Those more proximate to event admitted, those more spontaneous, those more comprehensive. those more spontaneous, those more comprehensive. Those that are simply repetitious are not necessary.Those that are simply repetitious are not necessary.

Lamer C.J.C. in Lamer C.J.C. in SmithSmith

On the issue of necessity, the relevant On the issue of necessity, the relevant question is not whether the evidence question is not whether the evidence is necessary in an “absolute sense”, is necessary in an “absolute sense”, but rather whether it is but rather whether it is reasonably reasonably necessarynecessary in the circumstances. in the circumstances.

Necessity must be given a “flexible Necessity must be given a “flexible definition” capable of encompassing definition” capable of encompassing diverse situations.diverse situations.

Lamer C.J.C. continuedLamer C.J.C. continued

Necessity would arise where (1) the Necessity would arise where (1) the person whose assertion was offered person whose assertion was offered was dead, out of the jurisdiction, was dead, out of the jurisdiction, insane, or otherwise unavailable; or insane, or otherwise unavailable; or (2) where the assertion was such (2) where the assertion was such that it was unreasonable to expect to that it was unreasonable to expect to obtain evidence of the “same value obtain evidence of the “same value from the same or other sources.”from the same or other sources.”

NecessityNecessity

• It is clear that what can qualify as It is clear that what can qualify as “necessary” is constantly being re-“necessary” is constantly being re-defined and expanding. What is defined and expanding. What is “reasonably necessary” depends on the “reasonably necessary” depends on the circumstances of the case, and is only circumstances of the case, and is only limited by the imagination of the limited by the imagination of the proponent. The categories of necessity proponent. The categories of necessity are not closed.are not closed.

NecessityNecessity

• Is a Question of Law for the TOL.Is a Question of Law for the TOL.

• Must be determined on a case by Must be determined on a case by case basis. What is necessary in one case basis. What is necessary in one case, may not be in another, even if case, may not be in another, even if seemingly the same.seemingly the same.