Hearsay Rule Introduction to the Hearsay Dangers

Khan, R. v. (1990) (S.C.C.) McLachlin J.

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  Issue: Concerned admissibility of mothers evidence about what child had said about sexual assault 15 minutes after leaving Khan’s office (and there was physical evidence (stains on clothing) corroborating child’s statement)
  
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  Arguments: it was argued mother’s evidence should be admissible either under res gestae exception to rule against hearsay, or as a new exception (for hearsay concerning children and sexual assault and statements made shortly after event)
  
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  Decision:
  
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    McLachlin said not under res gestae, and didn’t want to create a new exception (quoting Ares v. Venner) to the rule against hearsay (since if allowed exception here, then why not in many other such circumstances e.g. for statement made just after bank robbery, etc). So did not pigeonhole into new exception.
    
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    Rather tended toward a principled approach, and said that in this case (which is on periphery of existing exceptions) evidence of mother should admissible if it was:
    
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      Reasonably necessary
      
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      Reasonably reliable:
      
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  Comment: trial judge will determine reasonably necessary and reasonably reliable in voir dire, and will not tell jury why thought it reasonably reliable since this could usurp jury’s job in determining ultimate reliability
  

Principled Approach

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  Khan decision was well-received by both courts and academics, and 2 years later it was broadened: Smith, R. v. (1992) (S.C.C.) Lamer C.J. (unanimous)
  
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  Lamer CJ: “this court’s decision in Khan, therefore, signalled an end to the old categorical approach to the admission of hearsay evidence. Hearsay evidence is now admissible on a principled basis, the governing principles being the reliability of the evidence and its necessity.”
  
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  Principled approach from Khan described as hearsay will be admissible if it is:
  
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    Reasonably necessary
    
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      Not “necessary to the prosecution’s case”
      
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      Must be given a flexible definition, capable of encompassing diverse situations.
      
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      Comment: may include situations where declarant is unavailable because dead or can’t be subpoenaed from other county or perhaps can’t afford to travel to court (conflicting case law on such economic reasons), or maybe also because for some reason declarant can’t tell their whole story, because nervous / young / forgetful / too traumatised to testify / incompetent to testify because child or mentally ill
      
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    Reasonably reliable
    
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      Can speculate/hypothesize as to possibility of declarant having been mistaken or dishonest
      
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      Looking for a reasonable circumstantial guarantee of trustworthiness which is a function of the circumstances under which the statement in question was made
      
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      Comment: subsequent cases have referred to this as threshold reliability. Threshold reliability likely to be higher requirement for hearsay offered by the Crown than by the accused, and in criminal than civil cases
      

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  “Where the criteria of necessity and reliability are satisfied, the lack of testing by cross-examination goes to weight, not admissibility, and a properly cautioned jury should be able to evaluate the evidence on that basis.” - Smith
  
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    Probative value outweighs the potential for prejudice
    
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      Probative value determined according to:
      
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        Reliability / strength of the evidence.
        
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        Strength / extent of the inferences it leads to.
        
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        Importance of fact in issue those inferences relate to.
        
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      Potential for prejudice means potential to make trial unfair, and includes:
      
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        Fairness to parties and to witnesses
        
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        Potentially distorting effect it could have on the outcome of the case
        
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          E.g. could it invite improper inferences
          
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          E.g. extent to which it could excite / inflame the jury
          
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          E.g. character evidence can lead jurors to think accused is bad type of person and such people do things such as what accused is charged with
          
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          E.g. extent to which it may confuse the issues
          
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        Practicalities of presentation and response
        

R. v. KGB (1993) (SCC)

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  Facts: Street fight  death  4 men involved: accused and 3 “witnesses” who are questioned by police (videotaped) but change story on stand regarding accused’s incriminating statement.
  
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  On s. 9 admission of tape Crown impeaches with prior statement – cannot use though since they want to rely on this statement as truth (it is their best evidence) – prior to KGB inadmissible they say that they had lied during investigation – trial judge holds that evidence can go to credibility not identity  later the 3 plead guilty to perjury
  
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  Issue: Substantive admissibility of prior inconsistent statements by witness other than accused
  
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  Held: Court decides to analyse in light of Kahn and Smith (pre-Starr)
  
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    Affirm reliability and necessity and articulate that prior inconsistent statements will be admissible for their truth if they are necessary and reliable
    
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    Necessity: how do you determine necessity? Where else can we get the statements’ truth from – no other way it can be relied upon – i.e. no other way to get evidence of same value since witness now refuses to cooperate
    
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    Reliability: Most analysis occurs under this branch – indicia of reliability – i.e. looking to Smith – this is a question of law and not fact.
    
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      If you have statement under oath, solemn affirmation, after a warning about consequences of not telling truth, and if it is video-taped in its entirety this is sufficiently reliable – although have only seen this applied to videos, could apply elsewhere. And if the opposing party, has a full opportunity to cross the witness now on the stand respecting this prior statement
      

Starr, R. v. (2000) (S.C.C.)

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  Says definitively that principled approach should be used i.e. that hearsay is admissible only if it is reasonably necessary, reasonably reliable and probative value outweighs potential for prejudice
  
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  Further, old exceptions (i.e. pre-Smith) still helpful but must be interpreted / re-examined in a manner consistent with principled approach (and so are open to question – e.g. old dying declarations made against enemy would now unlikely be admissible, since not reasonably reliable).
  
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  When determining reasonable / threshold reliability should only take into account the circumstances of the statement (including relationship between D and who they were talking about, history of D’s perjury, etc). So cannot take other evidence into account, otherwise judge would be usurping role of the jury (e.g. if the statement is corroborated by other evidence, as McLachlin seemed to suggest in Khan.) – reversed in R. v. Khelawon
  

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  So should always now start with Smith, but if the issue looks like it falls within one of the old exceptions to the “rule against hearsay” mention it and the idea behind it, but say now open to review.
  

R. v. Khelawon (2006) (SCC)

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  It has long been recognized that a rigid application of the hearsay rule would result in the unwarranted loss of much valuable evidence. Governing framework summarized in R. v. Mapara
  
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    Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. Traditional exceptions to the hearsay rule remain presumptively in place
    
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    A hearsay exception can be challenged to determine whether it is supported by the indicia of necessity and reliability as required by the principled approach
    
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    In rare cases, evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case.
    
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    If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity are established in a voir dire.
    
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  Distinction between threshold and ultimate reliability:
  
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    Ultimate reliability is concerned with whether the statement is true or not
    
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    Threshold reliability is concerned with whether or not the circumstances surrounding the statement itself provide circumstantial guarantees of trustworthiness.
    

Functional Approach – Khelawon

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  Step One: Is the proposed evidence hearsay? Requires that:
  
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    The evidence is being tendered for its truth
    
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    There is no opportunity to cross-examine the declarant
    
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  Step Two: Hearsay evidence is presumptively inadmissible – general exclusionary rule
  
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  Step Three: Is there a traditional exception to the hearsay rule?
  
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    If the evidence falls within one of the traditional common law exceptions, then it is admissible - Starr
    
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    However, in rare cases the exception itself may be challenged.
    
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  Step Four: Exceptions – principled approach – must establish the necessity and reliability of the hearsay evidence.
  
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    Two primary ways to satisfy the reliability requirement:
    
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      Show that there is no real concern over the truth of the statement – show that the statement was made in circumstances where there is a high probability of its trustworthiness
      
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      Show that there is no real concern from the fact that the statement arises in hearsay form because its truth and accuracy can nonetheless be adequately tested.
      
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  Overrules Starr with respect to limiting the inquiry to the circumstances surrounding the making of the statement
  
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    Now allows for some consideration of extrinsic corroborating evidence!
    
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      Allows for case by case flexibility looking to all the facts
      

Foster on the Impact of Khelawon and Starr

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  There is still a distinction between threshold and ultimate reliability. There has to be, because there is a distinction between admissibility and probative value.
  
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    The judge decides if the hearsay is admissible, including the question of threshold reliability
    
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    The jury decides its probative value in the context of all the evidence in the case and whether this evidence meets the burden of proof on the crown.
    
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  However, Khelawon departs from Starr by making it clear that factors relevant to deciding admissibility (meaning whether the hearsay is reasonably necessary and sufficiently reliable to "pass the judge" and go to the jury) should not be categorized in advance but will depend on the facts of each case. The SCC describes this as a "functional" approach, which is another way of saying that it is more in accord with the "principled" approach announced in Khan, etc.
  
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  Starr, on the other hand, stated that some factors - such as the presence or absence of corroborating or conflicting evidence, the reputation of the declarant for truthfulness, etc. - were relevant only to ultimate reliability. That is, they were solely for the jury. The judge was not to consider them when deciding threshold reliability. This was inconsistent with the SCC's own decisions in cases such as Khan and Smith and, rather like KGB, seemed to head us all back to a "rule-based" approach. Khelawon changes this.
  
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  The trick for the trial judge is deciding threshold reliability without invading the province of the jury. As Justice Charron puts it, "it is crucial to the integrity of the fact-finding process that the question of ultimate reliability not be pre-determined on the admissibility voir dire"
  

Determining Necessity

R. v. Parrott (2001) (SCC)

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  Although the concept of necessity must be given a flexible definition capable of encompassing diverse situations, it must nevertheless be established on the facts of each particular case
  

R. v. Couture (2007) (SCC)

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  Facts: A controversial 5-4 decision in which the SCC dismissed the Crown’s appeal and ordered a new trial for David Couture, a man sentenced to life in prison without the possibility of parole for sixteen years.
  
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  In July of 2003 David Couture had been convicted of two counts of second degree murder. The victims were Couture’s former live-in girlfriend, Darlinda Lee Ritchey and her friend, Karen Ann Baker, both of whom went missing in 1986. Owing to a lack of forensic evidence and eyewitness testimony, the convictions were based in large part on two out-of-court statements made by Couture’s wife, Darlene, to police in 1997.
  
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  Owing to the spousal incompetency rule, Mrs. Couture could neither be called as a courtroom witness, nor could she be cross-examined regarding her statements to police. Her statements were thus hearsay and the legal issue became one of admissibility.
  
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  Her statements were nonetheless admitted at trial because they were deemed to have met the separate requirements of ‘necessity’ and threshold ‘reliability’ which constitute the principled exception to the hearsay rule.
  
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  In order to justify the admissibility of Darlene Couture’s statements, the trial judge relied heavily upon the SCC’s 2006 decision in R. v. Hawkins.
  
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    In Hawkins, a case concerning a police officer charged with obstructing justice and corruptly accepting money, it was held that a spouse’s hearsay statements could be admitted according to the exception to the hearsay rule.
    
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  Held: At the SCC, the majority (consisting of McLachlin C.J. and Binnie, LeBel, Fish and Charron JJ) found that the admission of Darlene Couture’s statements under the principled exception of hearsay would seriously undermine the spousal incompetency rule and its objectives. This, of course, stands in contrast with the SCC’s decision in Hawkins. Thus, the majority found ample reasons to distinguish Hawkins. The Court stated that:
  
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    “It is important to keep the spousal incompetency inquiry analytically distinct from the hearsay inquiry. As explained earlier, the spousal incompetency rule is based on different rationales that are unconnected to the reliability concerns arising from the hearsay nature of the evidence.”
    

Comment: Ultimately, the majority and the minority equally emerge at two polar extremes concerning the relationship between the spousal incompetency rule and those governing hearsay evidence.

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