Necessity Under the Principled Approach to Hearsay

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General Principles

See also: Principled Exception to Hearsay

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), per Stack J, at para 117
  2. ↑ See R v Devine, 2008 SCC 36 (CanLII), 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] AJ No 557, 1995 ABCA 234 (CanLII), per Cote JA (2:1)
    R v Clarke (Ont. Ct. (Gen. Div.)) [1991] OJ No 997(*no CanLII links) at para F
  3. ↑ FJU, supra

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.[1]

  1. ↑ R v Cater, 2012 NSPC 15 (CanLII), per Derrick J, at para 30, appealed on other grounds at 2014 NSCA 74 (CanLII), per Saunders JA
    See also Evans, supra, at para 24

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), per Rosenberg JA

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.[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 BRJ, 2012 NSPC 32 (CanLII), per Derrick J, at paras 21 to 24
  2. ↑ BRJ, ibid., 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]

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.[3]

  1. ↑ 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 - 9, and 23 - 31
    R v Goodstoney, 2005 ABQB 128 (CanLII), per Rooke ACJ
    R v Gardipy, 2012 SKCA 58 (CanLII), per Richards JA, at para 19
  2. ↑ supra
  3. ↑ 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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