Law 309 Evidence Introduction 5

Categorical Exceptions

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  Not as solid as above exceptions, but do come up from time to time – important to understand the CL background and then consider how they might be critiqued with principled approach
  

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  Exceptions for statements where such spontaneity that the possibility for concoction or fabrication could be discounted – CL rule was that res gestae were admissible if
  
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    Related to a startling event or condition
    
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    And made while the declarant is under the stress of excitement caused by the event or condition - Clark
    
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    Bedingfield – no longer a contemporaneousness requirement.
    

R v. Clark (1983)

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  Facts: Was this murder or self-defence? (stabbed with comb 16 times! After confronted by accused now says she was going to retrieve lawn chairs and acted in SD)
  
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  Issue: Witness was neighbour and so hearsay statement is her testimony of deceased’s statement “help! I’ve been murdered, I’ve been stabbed!” – Admitted at trial for truth of contents
  
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  Held: Affirmed by Ont CA, as spontaneous utterance
  
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    Question how useful is this? Not very – but how does court understand the rationale of this exception  note the absence of hearsay dangers – no time to concoct or distort, considered reliable.
    
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    But is this acceptable? The person may be mistaken in their perception regardless of lack of time to fabricate, especially when stressed.
    

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  Where person appears to be experiencing a particular physical condition, the statement containing that claim is admissible but only to prove that the person was experiencing the condition at the time and to establish its duration
  
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    Natural expressions that come out of injury or illness
    
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    Eg. Someone dies of unexplained stroke but two day earlier had been punched in back of head by accused – witness testifies that later the victim expressed that his head really hurt, and next morning states “my head still hurts and I feel really woozy” – victim dies and accused charged – hearsay but admissible under this exception to prove that head hurt and continued to hurt (causation)
    
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  Theory at law was that statements of physical pain are reliable (past pain not admissible though—had to be current; statements of why are also not admissible)
  

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  Move from physical to mental state – emotions, intentions, plans, motives of the declarant – when a person explicitly describes his or her present state of mind (emotion, intent, motive, plan), the person’s statement to that effect is admissible where the state of mind is relevant and the statement is made in a natural manner and not under circumstances of suspicion.
  
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    Common ex. “I am afraid” uttered by person not available to take stand – if it is explicit then offering for the truth of its contents – whereas “I have no friends” – not offered for truth of its contents speaks about declarant’s perception (like “they were communists”)
    
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    So I am sad = hearsay; I have no friends, no one likes me = not hearsay
    
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  Theory is that people generally describe their emotions accurately
  

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  Law presumed that people would not say things that would hurt them financially unless true – rule was that statements of pecuniary interest would be admissible if could show:
  
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    1) that the declarant was not available,
    
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    2) the statement was in fact made against the declarant’s interest and
    
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    3) that the declarant had personal knowledge of the facts stated
    
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  More recently, expanded to include statements against penal interest, but its hedged with so many exceptions that it is fairly insignificant
  

R v. Demeter

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  Rule on statements against penal interest:
  

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  declarant apprehended a vulnerability to penal consequences,
  
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  that vulnerability must be immediate not remote,
  
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  the situation must be taken into account as a whole – if not contrary to penal interest in its totality, the statement is not admissible,
  
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  if unclear, the court must consider whether there are other circumstances linking the declarant with the crime or b/n the declarant and the accused, and
  
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  the declarant must be unavailable and refusal to testify does not count – this is unusual and applies to penal consequences only – concern over veracity
  

R v. Lucier (1982)

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  Facts: Accused charged with arson – another guy says that he set fire at request of Lucier – then other guy dies and Crown tries to use statement against Lucier – SCC says no
  
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  Held: No clear expression of why but likely a result of accused’s right to full answer and defence and notion that in case where Crown offers, it may be a case of declarant wanting to bring others down with him.
  
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  Following Lucier SCC says this categorical exception applies only where statement against penal interest used for exculpatory purposes (asymmetrical operation – Crown cannot use) since inculpatory statement evidence robs accused of right to cross-examination
  

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  Admissible if:
  
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    1) the deceased had a settled, hopeless expectation of almost immediate death,
    
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    2) the statement has to have been about the circumstances of that death, 3) the statement would have to have been admissible if around to testify, 4) the offence involved is the homicide of the deceased
    
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  So extremely narrow exception
  
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  Apply principled approach and even if don’t meet this category can use Smith and Kahn rules
  

Prior Judicial Proceedings

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  Where declarant has testified at a prior judicial proceeding and come trial time is unable to or unavailable to testify
  
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  Statement made under oath and generally w/ opportunity for cross-examination and so basis for the exception now governed by statute – used to be governed by CL rule on prior testimony  had to establish
  
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    otherwise unavailable
    
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    issues and parties in cases are substantially the same
    
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    has to be testimony – i.e. from a prior judicial proceeding – sworn testimony
    
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    opposing party had to have full opportunity to cross the original statement
    
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  If all of these satisfied then admissible
  
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  This rule has been dealt with by s. 715
  

Criminal Code 715
715. (1) Where, at the trial of an accused, a person whose evidence was given at a previous trial on the same charge, or whose evidence was taken in the investigation of the charge against the accused or on the preliminary inquiry into the charge, refuses to be sworn or to give evidence, or if facts are proved on oath from which it can be inferred reasonably that the person

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  is dead,
  
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  has since become and is insane,
  
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  is so ill that he is unable to travel or testify, or
  
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  is absent from Canada,
  

R v. Potvin (1989)

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  Facts: Three charged with 2^nd degree murder after B & E to steal jewellery – one testified at prelim but later refuses to testify at appellant’s trial  prelim evidence admitted at trial under what is now s. 715
  
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  Issues:
  
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    Can the appellant’s testimony from the prelim inquiry be introduced where the appellant refuses to testify at trial? In other words does s. 715 of the CC violate 7 & 11(d) & 12 of the Charter?
    
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  Held:
  
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    S. 715 does not violate s. 7 PFJ
    
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      Evidence given under oath at previous proceeding is admissible where witness unavailable at trial provided the accused had an opportunity to cross-examine the witness when evidence originally given – and safeguards affirm that it is the best evidence in the circumstances
      
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      S. 715 and s. 7 only about the opportunity to cross-examine and so strategic choice not to cross does not count (so this tells about how to define full opportunity) this is not met where accused deprived of right to counsel
      

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  40(4) Where a witness is dead, or is unable to attend and testify because of age, infirmity, sickness or imprisonment or is out of the jurisdiction or his or her attendance cannot be secured by subpoena, the court may permit a transcript of any evidence of that witness taken in any proceeding, hearing or inquiry at which the evidence was taken under oath, whether or not involving the same parties to be put in as evidence, but reasonable notice shall be given of the intention to give that evidence.
  

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  Must be a same facts situations – e.g. criminal conviction of careless driving could be used in a civil suit against the same driver.
  
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  Not a matter of attacking credibility, rather going in under the plaintiff’s case in chief as part of their evidence
  

Business Records

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  Strong categorical exception for statements made in course of duty (old CL exception) based on absence of hearsay dangers
  
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    No motive to lie
    
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    Businesses rely on these records and job of recorder is to be accurate and so indicia of reliability
    
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    Generally made at time events happen
    

CEA 30 (Business Records and so displaces Ares v. Venner)

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  30. (1) Where oral evidence in respect of a matter would be admissible in a legal proceeding, a record made in the usual and ordinary course of business that contains information in respect of that matter is admissible in evidence under this section in the legal proceeding on production of the record.