Principled Exception to Hearsay

From Canadian Criminal Law Notebook
Jump to: navigation, search

General Principles

The "principled approach" is an exception to the hearsay rule of inadmisibility.[1] It is founded on the premise that a statement may be admitted as hearsay where it is established as (1) necessary to a hearing[2], and (2) is reliable.[3]

When considering a prior inconsistent statement the court must begin by presuming that the statement is inadmissible for the truth of its contents unless it has been established there is sufficient indicia of trustworthiness.[4]

Before hearsay evidence can be admissible under the principled exception it must be relevant[5] and has been determined whether it already fits in a traditional exception.[6]

Even when the hearsay evidence is reliable and necessary, there is still a discretionary ability to exclude the evidence where the prejudicial effect outweighs the probative value.[7]

The statement must be sufficiently reliable to "overcome the dangers arising from the difficulties of testing it."[8]

The "overarching principle" is the admission of hearsay is trial fairness, which includes not simply the rights of accused but also the societal goals of truth.[9]

The onus is upon the person seeking to admit the hearsay on a balance of probabilities to prove both necessity and reliability.[10]

Relationship Between Necessity and Reliability
The criteria to evaluate necessity and reliability "work in tandem" such that where one is established the other requirement can be "relaxed". The deficiencies of the other category can be "overcome" by the other.[11]

Appellate Review
Admissibility of evidence is reviewable on a standard of correctness.[12] The determination of threshold reliability is "entitled to deference" unless there was an error in principle.[13]

  1. R v Khan, 1990 CanLII 77 (SCC), [1990] 2 SCR 531
    R v K.G.B., [1993] 1 SCR 740, 1993 CanLII 116 (SCC)
    R v Hawkins & Morin, 1996 CanLII 154 (SCC)
    R v Starr, [2000] 2 SCR 144, 2000 SCC 40 (CanLII),
  2. R v Khan, at para 29
  3. R v Khan, at para 30
  4. R v Blackman, 2008 SCC 37 (CanLII)
  5. R v Underwood, 2002 ABCA 310 (CanLII) at para 19
  6. R v Starr, 2000 SCC 40 (CanLII), [2000] 2 SCR 144 at para 212-214
  7. R v Smith at para 45
  8. R v Sharif, 2009 BCCA 390 (CanLII), at para 12
  9. R v Sharif, at para 12
  10. R v Sharif, at para 12
  11. R v Gerrior 2014 ONCA 76 at para 54
    R v Baldree, 2013 SCC 35 (CanLII) at para 72
  12. R v Okeynan, 2016 ABCA 184 (CanLII), at para 21
  13. R v Youvarajah, 2013 SCC 41 (CanLII)
    R v Couture, 2007 SCC 28 (CanLII)
    R v Chretien, 2014 ONCA 403 (CanLII) at paras 43 to 55

Voluntariness

Where the statement being admitted is one of an accused person, even if a former co-accused, the Crown must also prove voluntariness by establishing on the balance of probabilities that the statement "was not the product of coercion in any form, whether it involves threats, promises, excessively leading questions by the investigator or other person in a position of authority, or other forms of investigatory misconduct." [1]

  1. R v B.R.J., 2012 NSPC 32 (CanLII) at para 13
    R v K.G.B., 1993 CanLII 116 (SCC), [1993] 1 SCR 740, [1993] S.C.J. No. 22, at para 117
    R v Sharif, 2009 BCCA 390 (CanLII), at para 12 (Listed item #11)

Procedure

R v Woodard, 2009 MBCA 42 (CanLII) summarized procedure for the admission of evidence under the principled approach to hearsay as follows at 46:

(1) The first matter to determine before embarking on a hearsay admissibility inquiry is whether the proposed evidence is hearsay. An out-of-court statement will be hearsay when:

(1) it is adduced to prove the truth of its contents (the purpose); and
(2) there is limited or no opportunity for a contemporaneous cross-examination of the declarant (the concern) (see Khelawon, at paras 56-58).


(2) Once the proposed evidence is identified as hearsay, it is presumptively inadmissible, unless it falls under a traditional common law exception to the hearsay rule or is admitted under the principled approach to the hearsay rule (see Khelawon, at paras 56, 59, and Couture, at para 78).
(3) Whether the hearsay meets the necessity and threshold reliability criteria under the principled approach will be determined on a voir dire. The onus is on the person who seeks to adduce the evidence to establish these criteria on a balance of probabilities (see Khelawon, at para 47).
(4) If the proponent of the evidence cannot meet the twin criteria of necessity and reliability, the general exclusionary rule prevails. The trial judge's function (as gatekeeper) is to guard against the admission of hearsay evidence which is unnecessary in the context of the issue to be decided, or the reliability of which is neither readily apparent from the trustworthiness of its contents, nor capable of being meaningfully tested by the ultimate trier of fact (see Khelawon, at paras 2-3).
(5) The criterion of necessity is founded on society's interest in getting at the truth and is intended to ensure that the evidence presented to the court be in the best available form, usually by calling the maker of the statement as a witness. If that is not possible, it may be that if the evidence is to be adduced at all, it can only be presented in its hearsay form (see Khelawon, at para 49, and Couture, at para 79).
(6) The criterion of threshold reliability is about ensuring the integrity of the trial process and is usually met:

(1) by showing that sufficient trust can be put in the truth and accuracy of the statements because of the way in which they came about; or
(2) by showing that, in the circumstances, the ultimate trier of fact will be in a position to sufficiently assess their worth.
The two ways of demonstrating threshold reliability are not mutually exclusive. In cases where the declarant is available to be cross-examined, the focus will necessarily be on the latter way (see Khelawon, at paras 49, 61-63, Couture, at para 80, Devine, at para 23, and Blackman, at para 35).


(7) A distinction must be made between "ultimate reliability" and "threshold reliability." Only the latter is inquired into on the admissibility voir dire. The failure to respect this distinction would not only result in the undue prolongation of admissibility hearings, it would distort the fact-finding process. Whether the evidence is relied upon to decide the issues in the case is a matter reserved for the ultimate trier of fact to decide in the context of the entirety of the evidence (see Khelawon, at paras 3, 50).
(8) Relevant factors to be considered cannot invariably be categorized as relating either to threshold or ultimate reliability. Rather, the relevance of any particular factor will depend on the particular dangers arising from the hearsay nature of the statement and the available means, if any, of overcoming them (see Khelawon, at para 55).
(9) Although there are no hard and fast rules about the manner of conducting the hearsay admissibility inquiry, there are good reasons to look first at whether there are adequate substitutes that give the trier of fact a sufficient basis to assess the statement's truth and accuracy. Whenever the threshold reliability requirement is met on this basis, there is no need to inquire further into the likely truth of the statement (see Couture, at paras 87-88).
(10) Even if the two criteria are met, the trial judge has the discretion to exclude hearsay evidence where its probative value is outweighed by its prejudicial effect (see Khelawon, at para 49).


A first step to the admission of hearsay is to determine if supposed hearsay is even relevant to the case.[1]

A KGB application is typically one made by the Crown, but may also be made by the defence. The defence is permitted to apply to put a previous inconsistent statement into evidence for the truth of its contents.[2]

Before a KGB application can be undertaken the court must first be satisfied on a threshold that the prior inconsistent statement is the sole evidence of the witness[3] and that the statement is consistent with the evidence in court.


  1. R v Pralijak, 2012 ONSC 5262 per Dambrot J at para 24
  2. See R v Brisco, [2007] A.J. No. 208(*no link) and R v Eisenhauer, 1998 CanLII 1901 (NS CA), [1998] S.C.C.A. No. 144
  3. R v KGB at para 74

Necessary

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.[1] 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.[2] It generally always made out when there is a recantation.[3]

  1. see eg. R v Abel, 2011 NLTD 173 (CanLII) at para 117
  2. See R v Devine, 2008 SCC 36 (CanLII) at para 16
    R v U.(F.J.), 1995 CanLII 74 (SCC), [1995] 3 SCR 764
    see also R v De Elespp [2002] A.J. No. 6702 at paras 37 and 108
    R v Rombough, 2006 ABPC 262 (CanLII), [2006] A.J. No 1768 at para 36
    R v Biscette [1995] A.J. No. 557
    R v Clarke (Ont. Ct. (Gen. Div.)) [1991] O.J. No. 997 at para F
  3. R v U(FJ), 1995 CanLII 74 (SCC), [1995] 3 SCR 764

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.[1]

  1. e.g. R v Taylor, 2012 ONCA 809 (CanLII)

Missing Witnesses

Dishonest Forgetful Witness

A witness who falsely claims a lack of memory can often be identified by factors such as the amount of time that has passed and the selectivity of the memories remembered.[1]

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.[2]

  1. e.g. R v B.R.J., 2012 NSPC 32 (CanLII) at para 21 to 24
  2. B.R.J. at para 24

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. [1] There is no onus on the Crown to prove why the complainant failed to testify.[2]

  1. R v Lavery, [1995] BCJ No.2713 (S.C.), at para 9;
    R v C.C.B., [1999] S.J. No. 672 (P.C.), at paras 5 - 9, and 23 - 31
    R v Goodstoney, 2005 ABQB 128 (CanLII)
    R v Gardipy, 2012 SKCA 58 (CanLII) at para 19
  2. supra

Child Witnesses

Where the experience testifying may be so traumatic at to prevent a chlid 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 statment. 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 at p. 846
  2. Sopinka, The Law of Evidence in Canada, 2nd edition, at ss.6.55

Reliability

The reliability criterion suggests that the statement may be admitted where, "because of the way in which it came about, its contents are trustworthy", or where "circumstances permit the ultimate trier of fact to sufficiently assess its worth."[1]

Threshold reliability should be met if:[2]

  1. The statement is made under oath or solemn affirmation after a warning as to possible sanctions if the person is untruthful;
  2. The statement is videotaped or recorded in its entirety; and
  3. The opposing party has a full opportunity to cross-examine the witness on the statement[3]

Alternatively, it can be satisfied if there are:[4]

  1. Sufficient substitutes for testing truth and accuracy (procedural reliability); and
  2. Sufficient circumstantial guarantees of reliability or inherent trustworthiness (substantive reliability) [5]

Reliability is typically established in two ways, neither of which are mutually exclusive. First, the applicant can so there is "circumstances in which the hearsay statement came about make it sufficiently reliable that contemporaneous cross-examination would add little, if anything, to the process.” Second,The applicant can show that "circumstances allow for sufficient testing of the evidence by means other than contemporaneous cross-examination.” [6]

The Khelawon inquiry has been characterized as having two dimensions. First, there is the "content-based review" where the court looks at the circumstances in which the statement was made, regardless of its form.[7] Second, there is the "process-based assessment" of the statement to consider the adequacy of the substitutes for testing trust and accuracy of the statements by means other than cross-examination.[8]

As always, the focus of analysis is to be on the hearsay dangers.[9] The primary danger of concern is the inability to cross-examine.[10] The court must be satisfied that the statement is sufficiently reliable to be considered as evidence. The judge must determine whether the statement shows sufficient reliability to afford a satisfactory basis for evaluating the truth of the statement.[11] The criteria of reliability deals with threshold reliability, not ultimate reliability to establish some fact. The former is a question of law for the judge, the latter is a question of fact for the trier-of-fact.[12]

In examining threshold reliability, the judge must be careful not to pre-determine question of ultimate reliability.[13]

There are two manners in which relability can be established: 1) by detailing the circumstances in which the statement was taken; or 2) “by showing that, in all of the circumstances, the ultimate trier of fact will be in a position to sufficiently assess the worth of the statement.[14]

Where the circumstances of the statement "substantially negates" the possibility that the declarant was untruthful or mistaken, then the statement is reliable.[15]

There are two ways of establishing reliability. The first manner is founded upon the circumstances in which the statement was made which are inherently reliable, such as spontaneous utterances, statements against interest and dying declarations.[16] The second manner is founded upon the ability to test the truth and accuracy of the statement. Adequate substitutes to contemporaneous cross-examinations are preferred, such as an oath or equivalent; opportunity to observe the statement being made; opportunity to cross-examine the declarant.[17]

The factors relevant to reliability will vary depending on circumstances as the particular dangers associated with the hearsay evidence may vary.[18]

Circumstantial guarantees of trustworthiness include:[19]

  1. corroboration of admissible evidence,
  2. timing,
  3. spontaneity,
  4. voluntariness,
  5. response to open-ended questions,
  6. absence of motive to lie, and
  7. absence of attempts to shift blame.

The "opportunity to cross-examine the declarant remains the most powerful factor favouring admissibility".[20]

Important circumstances to the statement include:[21]

  • The timing of the state in relation to the event reported;
  • The absence of a motive to lie on the part of the declarant;
  • The presence or absence of leading questions or other forms of prompting;
  • The nature of the event reported;
  • The likelihood of the declarant's knowledge of the event, apart from its occurrence; and
  • Confirmation of the event reported by physical evidence.

When considering a prior inconsistent statement the focus on the reliability analysis should be "on the comparative reliability of the prior statement and the trial testimony."[22]

  1. Khelawon at para 2
  2. R v Okeynan, 2016 ABCA 184 (CanLII) at para 26
    R v Zaba, 2016 ONCA 167 (CanLII), per Huscroft JA, at para 10
  3. see also Khelawon, supra at paras 79
  4. Okeynan, supra at para 27
  5. see also Khelawon, supra at paras 61 to 63
  6. R v J.M., 2010 ONCA 117 (CanLII) at para 53 and 65
  7. R v Herntier, 2016 MBQB 236 (CanLII) at para 69
  8. Herntier, ibid. at para 70
  9. R v MNP, 2012 MBQB 70 (CanLII) at para 14
  10. R v Smith at 29
  11. R v Hawkins 1996 CanLII 154 (S.C.C.), (1996) 2 C.R. (5th) 245 (S.C.C.)
  12. R v Sharif, 2009 BCCA 390 (CanLII), at para 12 (point # 12)
  13. R v Khelawon, 2006 SCC 57 (CanLII), [2006] 2 SCR 787 at para 93
  14. See R v Blackman, 2008 SCC 37 (CanLII) at para 35
    R v Wilcox, 2001 NSCA 45 (CanLII) at para 66
  15. R v Nguyen, 2001 ABCA 98 (CanLII) at para 26 citing R Smith, at para 33
  16. R v Sharif, 2009 BCCA 390 (CanLII), at para 12
  17. R v Sharif, at para 12
  18. Sharif at para 13
  19. Okeynan at para 28
  20. Okeynan at para 28
    R v Couture, 2007 SCC 28 (CanLII) at para 95
  21. J.M. at para 54
  22. R v J.M. at para 55

Factors

Valid factors to assess reliability include:[1]

  1. solemnity of the occasion[2]
  2. the declarant’s adverse interest[3]
  3. the declarant had particular means of knowledge of events described[4]
  4. the statement distinguishes between first and second hand knowledge[5]
  5. the statement was officially recorded and preserved[6]
  6. the absence of a reason and/or motive to fabricate the statement (non-fabrication)[7]
  7. the timing of the statement in relation to the event spoken of (contemporaneity/remoteness)[8]
  8. the demeanour of the declarant at the time of the making of the statement (demeanour)[9]
  9. the spontaneity of the statement (spontaneity)[10]
  10. the relationship between the declarant and the witness (relationship)[11]
  11. the detail given in the statement (detail);[12]
  12. whether the declarant could be mistaken (mistake); [13]
  13. motive of the declarant (motive)[14]
  14. conduct of declarant[15]
  15. whether the statement was recorded[16] and
  16. “other”, including an “accurate record” - because it is clear from the cases that the list of factors is not closed and others may be added as appropriate to the particular circumstance.
  17. supporting or contradictory evidence[17]

Analysis for each case "must be tailored to the particular dangers presented by the evidence and limited to determining the evidentiary question of admissibility."[18]

Factors not to be considered in determining threshold admissibility:[19]

  1. reliability or credibility of the declarant;
  2. general reputation of the declarant for truthfulness;
  3. prior or subsequent statements, consistent or not; and
  4. presence or absence of corroborating or conflicting evidence.[20]

A videotaped statement can often be admitted where the declarant is available for cross-examination as there are often sufficient tools to assess the weight of the statement. [21]

It is possible to categorize indicia of reliability into subjects such as:[22]

  • Sincerity: reliability arising from the declarant's willingness to be truthful
  • Perception: reliability arising from the declarant's ability to observe
  • Memory: reliability arising from the declarant's ability to recall
  • Narration: the accuracy of the in-court report of the out-of-court statement
  • External Circumstances: any other indicia of reliability external from the declarant

The credibility of the narrator who reports the hearsay statement is not a valid consideration at the stage of threshold reliability.[23]

  1. Morehouse, [2004] A.J. No. 12 2004 ABQB 97 (CanLII) at para 53
    R v Finta 1992 CanLII 2783 ONCA aff’d at [1994] 1 SCR 701
    R v Nguyen 2001 ABCA 98 (CanLII)
  2. Finta
  3. Finta
  4. Finta
  5. Finta
  6. Finta
  7. Morehouse
  8. Morehouse; Nguyen at 44, ibid
  9. Morehouse; Nguyen
  10. Morehouse; Nguyen, ibid
  11. Morehouse
  12. Morehouse
  13. Morehouse
  14. Nguyen, ibid
  15. Nguyen, ibid
  16. R v Burke, 2010 ONSC 6530 (CanLII)
  17. Khelawon at para 4
  18. Khelawon, at para 4
  19. R v Goodstoney, 2005 ABQB 128 (CanLII) at para 18
  20. Herntier, supra at para 72
  21. R v M.N.P., 2012 MBQB 70 (CanLII)
  22. Herntier at para 72
  23. R v Berry, 2017 ONCA 17 (CanLII) at para 50

Presence of an Oath, Affirmation or Warning

Where there is no oath, other evidence may substitute for it. This may include evidence from which it can be inferred from when the statement was made, the apparent solemnity of the location and occasion of the statement, an understanding of the importance to tell the truth.[1]


Where there is no oath or opportunity to cross-examine, there must be sufficient guarantees of trustworthiness to compensate.[2]

  1. R v Trieu, 2005 CanLII 7884 (ON CA), (2005), 195 CCC (3d) 373 (Ont. C.A.)
  2. R v O’Connor, 2002 CanLII 3540 (ON CA) at para 56

Opportunity for Cross-Examination

A ability to cross-examine is a significant tool in testing evidence.[1]

The opportunity for cross-examination "alone provides significant indications of reliability"[2] and so could provide "an adequate assurance of threshold reliability to allow substantive admission of prior inconsistent statements"[3]

The effectiveness of cross-examination as a sign of reliability "depends on the nature of of the recantation of the witness."[4] So where there is a mere denial or absence of memory of the prior statement, cross-examination would have less importance.

The absence of cross-examination will render the court unable to inquire into issues of perception, memory, or sincerity. The statement may not be accurate, and may contain exaggerations or falsehoods which may go undetected.[5] Where there is an absence of memory, the opportunity to cross-examine becomes illusory.[6]

Where the witness claims some memory lapses is not, by itself, sufficient to render cross-examination meaningless or "illusory". The judge should carefully consider the impact of the lapses to make the determination on the evidence.[7]

  1. e.g. R v Frederickson, 2013 BCSC 779 (CanLII) at para 13 ("evidence is tested by cross-examination")
  2. U(FJ) at p. 119
  3. U(FJ)
  4. R v H(S), 14 C.R. (5th) 80, 37 W.C.B. (2d) 362 citing R v Conway, 1997 CanLII 2726 (ON CA), (1997), 36 O.R. (3d) 579, 121 CCC (3d) 397 and R v Tat (1997), 117 CCC (3d) 481 (Ont. C.A.)
  5. R v Khelawon 2006 SCC 57 (CanLII), [2006] 2 SCR 787 at para 2
  6. R v Conway (1997), 1997 CanLII 2726 (ON CA), 36 O.R. (3d) 579 (C.A.)
    R v Diu (2000), 2000 CanLII 4535 (ON CA), 49 O.R. (3d) 40 (C.A.)
  7. R v Zaba, 2016 ONCA 167 (CanLII) at para 15

Corroboration

The Judge may take into account the existence of corroborating evidence as an indicia of reliability.[1] It is important to remember that "repeating a story to others doesn't make it reliable".[2]

Despite a distinction between threshold and ultimate reliability, extrinsic evidence including corroboration, is permitted to be factored into both types of reliability.[3]

  1. R v Sharif, 2009 BCCA 390 (CanLII), at para 12 (citing para 50 of R v Post, 2007 BCCA 123 (CanLII))
  2. R v H(S), (1998) 14 C.R. (5th) 80, 37 W.C.B. (2d) 362 at para 32
  3. R v Khelawon, [2006] 2 SCR 787, 2006 SCC 57 (CanLII), at para 4
    c.f. R v Starr, [2000] 2 SCR 144, 2000 SCC 40 (CanLII), at para 215 - court stated extrinsic evidence not admissible at threshold reliability. This is no longer the case after Khelawon

Special Types of Witnesses

Elderly or infirm witnesses are classes of witnesses who present risk of being deceased by the time a trial comes about.

For both of them their reliability can be established with evidence of their fitness at the time the statement was given, such as:

  • medical evidence of any psychological reports regarding capacity[1]
  • any prescriptions being taken as well as their effect upon their capacity.[2]
  1. R v Taylor 2012 ONCA 809 (CanLII) at para 11
  2. Taylor at para 10

Types of Prior Statements

Agreed Statement of Facts

Nothing "per se renders a statement of fact", such an agreed statement of fact by a co-accused on a guilty plea, inadmissible due to unreliability.[1]

On a guilty plea, the accused is acknowledging that the statement is "substantially correct". This is not a statement but is an acknowledgement of truth through counsel.[2]

It has been suggested that where the co-accused has plead guilty and later testifies against other accused by way of KGB statement it should only be admitted in "the most exceptional cases".[3]

  1. R v House 2012 ONSC 6749 (CanLII) at para 19
  2. R v Tran 2010 ONCA 471 (CanLII) at para 43
  3. R v Tran at para 43
    R v House at para 19-23

Video Taped Interview

The presence of the declarant for cross-examination and the video tape of the declarant goes virtually "all the way" to establish a means of assessing reliability.[1]

  1. R v Trieu, 2005 CanLII 7884 (ON CA) at para 76

See Also