Necessity Under the Principled Approach to Hearsay

From Criminal Law Notebook
This page was last substantively updated or reviewed July 2021. (Rev. # 95225)

General Principles

See also: Principled Exception to Hearsay and Reliability Under the Principled Approach to Hearsay

Hearsay is admissible where the party tendering the evidence can show that necessity and reliability are met.[1]

Necessity requirement can be made out where the calling party "cannot compel testimony from the declarant."[2]

Unavailability can include unavailable in the strict physical sense.[3]

A reluctance to testify does not establish unavailability let alone necessity.[4]

Necessity must be in relation to a particular goal. The court should consider whether that goal can be achieved by other evidence that would otherwise be more reliable.[5] If the exists other avenues of proving the fact sought then the exception will not apply.

In the context of a recanting witness, necessity concerns the unavailability of the statement and not the witness.[6] It generally always made out when there is a recantation.[7]

Standard

Necessity should not be lightly assumed.[8]

The standard is determined by the reasonableness of the party's efforts to present the evidence by other means, with consideration of the opposing party's interests.[9]

The standard should be applied "flexibly."[10]

Traditionally there have been two classes of necessity. First, there are instances where the witness is unable or unwilling to testify. The second, is where the witness is available but the prior statement is not available. [11]

Accused or Co-Accused

A statement of an accused person who cannot be compelled to testify will generally be seen as necessary given the enforcement of that right.[12]

Dead Witnesses

Death of the witness is typically sufficient to establish necessity so long as the witness was the only source of information contained within the statement.[13]

Recanting

A witness who recants a prior statement will generally be enough to make out necessity.[14]

Dishonestly Forgetful Witness

A witness who falsely claims a lack of memory can often be identified by consideration of factors such as the amount of time that has passed since the observations and the selectivity of the memories remembered.[15]

Where "truth is being held hostage" by the witness, it is functionally the same as a witness who refuses to testify, resulting in the necessity element being satisfied.[16]

Witness Refuses to Testify

A witness who refuses to testify when all efforts to obtain that testimony have been taken to no avail will typically satisfy the requirement of necessity. [17] There is no onus on the Crown to prove why the complainant failed to testify.[18]

A witness who is shown to have refused to speak to the Crown or cooperate in any manner may amount to sufficient evidence to establish necessity.[19]

  1. ↑ R v Bradshaw, 2017 SCC 35 (CanLII), [2017] 1 SCR 865, per Karakatsanis J, at para 23
  2. ↑ R v Srun, 2019 ONCA 453 (CanLII), 377 CCC (3d) 79, per Watt JA, at para 123
    R v Al-Enzi, 2021 ONCA 81 (CanLII), per Tulloch JA, at para 120
  3. ↑ Srun, supra at para 123
  4. ↑ R v Vickers, 2020 ONCA 275 (CanLII), per curiam
    R v F(WJ), 1999 CanLII 667 (SCC), [1999] 3 S.C.R. 569, per McLachlin J, at para 44
  5. ↑ see eg. R v Abel, 2011 NLTD 173 (CanLII), 989 APR 113, per Stack J, at para 117
  6. ↑ See R v Devine, 2008 SCC 36 (CanLII), [2008] 2 SCR 283, per Charron J, at para 16
    R v FJU, 1995 CanLII 74 (SCC), [1995] 3 SCR 764, per Lamer CJ
    see also R v De Elespp [2002] AJ No 6702(*no CanLII links) , at paras 37 and 108
    R v Rombough, 2006 ABPC 262 (CanLII), [2006] A.J. No 1768, per Kerby J, at para 36
    R v Biscette, 1995 ABCA 234 (CanLII), [1995] AJ No 557, per Cote JA (2:1)
    R v Clarke (Ont. Ct. (Gen. Div.)) [1991] OJ No 997(*no CanLII links) , at para F
  7. ↑ FJU, supra
  8. ↑ R v Aitkens, 2019 ABPC 30 (CanLII), per J, at para 90
    R v Rockey, 1996 CanLII 151 (SCC), 1996 110 CCC 3d 481 (SCC), per McLachlin J, at para 28
  9. ↑ Aitkens, supra, at para 90
    R v Khelawon, 2006 SCC 57 (CanLII), [2006] 2 SCR 787, per Charron J (7:0), at para 104
  10. ↑ Al-Enzi, supra at para 121
    R v KGB, 1993 CanLII 116 (SCC), 1993] 1 SCR 740, per Lamer J at p. 796 (SCR)
  11. ↑ KGB, supra at p. 796
    Al-Enzi at para 121
  12. ↑ R v Cater, 2012 NSPC 15 (CanLII), 998 APR 46, per Derrick J, at para 30, appealed on other grounds at 2014 NSCA 74 (CanLII), per Saunders JA
    See also R v Evans, 1993 CanLII 86 (SCC), [1993] 3 SCR 653, per Cory J, at para 24
  13. ↑ e.g. R v Taylor, 2012 ONCA 809 (CanLII), 294 CCC (3d) 483, per Rosenberg JA
  14. ↑ Al-Enzi, supra at para 122
    R v Youvaraj, 2013 SCC 41 (CanLII), [2013] 2 SCR 720, per Karakatsanis J, at para 22
    R v McMorris, 2020 ONCA 844 (CanLII), per Lauwer JA, at para 22
  15. ↑ e.g. R v BRJ, 2012 NSPC 32 (CanLII), 1002 APR 141, per Derrick J, at paras 21 to 24
  16. ↑ BRJ, ibid., at para 24
  17. ↑ R v Lavery, 1995 CanLII 2529 (BC SC), [1995] BCJ No.2713 (S.C.), per MG MacDonald J, at para 9
    R v CCB, 1999 CanLII 12409 (SK PC), [1999] S.J. No 672 (P.C.), per Snell J, at paras 5 to 9, and 23 to 31
    R v Goodstoney, 2005 ABQB 128 (CanLII), 377 AR 75, per Rooke ACJ
    R v Gardipy, 2012 SKCA 58 (CanLII), 94 CR (6th) 328, per Richards JA, at para 19
  18. ↑ supra
  19. ↑ R v Johnson, 2018 NSCA 64 (CanLII)(*no CanLII links) , at paras 162 to 182

Child Witnesses

Where the experience testifying may be so traumatic at to prevent a child from testifying, the requirement of necessity will be satisfied.[1]

While in some limited cases the court may have the child testify within the voir dire to support the reliability of the statement. More often, the statement will be admitted without oral evidence and the lack of cross-examination will go to the weight of the prior statement.[2]

  1. ↑ R v Rockey, 1996 CanLII 151 (SCC), [1996] 3 SCR 829, per Sopinka J, at p. 846
  2. ↑ Sopinka, The Law of Evidence in Canada, 2nd edition, at ss.6.55
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