Hearsay Exceptions

• Author: David M. Paciocco/Lee Stuesser
• Pages: 106-171

106

1. PRINCIPLES UNDERLYING THE

EXCEPTIONS

Hearsay evidence may be admissible under an existing hearsay

exception or may be admitted on a case-by-case basis according to

the principles of “necessity and reliability.” “Necessity and relia-

bility” are the guiding principles for the admissibility of all

hearsay. The existing hearsay exceptions must comply with these

principles. If the hearsay exception does not conform to the princi-

pled approach it should be modified, where possible, to bring it into

compliance.

The “necessity” requirement is satisfied where it is “reason-

ably necessary” to present the hearsay evidence in order to prove a

fact in issue. “Reliability” refers to “threshold reliability,” which is

for the trial judge. The function of the trial judge is limited to

determining whether the particular hearsay statement exhibits

sufficient indicia of reliability so as to afford the trier of fact a sat-

isfactory basis for evaluating the truth of the statement.

Rigid application of the hearsay rule results in the loss of much valuable

evidence. In response, under the common law and statute, a long list of

hearsay exceptions evolved. Counsel then strove to fit the evidence

within a recognized exception. This led to pigeon-holing of the evi-

dence, driven by precedent rather than principle. Wigmore observed:

HEARSAY EXCEPTIONS

chapter 5

The needless obstruction to investigation of truth caused by the

hearsay rule is due mainly to the inflexibility of its exceptions, to the

rigidly technical construction of those exceptions by the courts, and

to the enforcement of the rule when its contravention would do no

harm, but would assist in obtaining a complete understanding of the

transaction.1

Wigmore urged greater flexibility based upon two guiding princi-

ples: necessity and reliability. The principle of necessity arose from the

choice of either receiving the evidence untested or losing the evidence

entirely. In assessing the reliability of the evidence, what was looked for

was some substitute for cross-examination to support the trustworthi-

ness of the statement.

The Supreme Court of Canada in R. v. Khan accepted Wigmore’s

approach.2Khan was a doctor charged with sexually assaulting a three-

and-a-half-year-old patient. The child and her mother went to Dr. Khan,

who was their family doctor. The child was examined first, in her moth-

er’s presence. Dr. Khan then had the child wait in his private office. Dr.

Khan and the child were alone for some five to seven minutes while the

mother got undressed in the examining room. Dr. Khan then examined

the mother. Some 30 minutes after the child had been left alone with Dr.

Khan, the mother and child had essentially the following conversation:

Mrs. O: So you were talking to Dr. Khan, were you? What did he say?

T: He asked me if I wanted a candy. I said yes. And do you

know what?

Mrs. O: What?

T: He said “open your mouth.” And do you know what? He

put his birdie in my mouth, shook it, and peed in my mouth.

Mrs. O: Are you sure?

T: Yes.

Mrs. O: You’re not lying to me, are you?

T: No. He put his birdie in my mouth. And he never did give

me my candy.3

The mother noted that the child was picking at a wet spot on her

sleeve; subsequent tests showed that the spot was produced by semen

and a mixture of semen and saliva. At trial, the judge ruled that the

child was not competent to testify and refused to admit the above out-

of-court statement made to the mother.

Hearsay Exceptions 107

1Wigmore on Evidence, 3rd ed. (1940), vol. 5, para. 1427.

2 (1990), 59 C.C.C. (3d) 92 (S.C.C.).

3Ibid. at 95.

The child’s out-of-court statement was being tendered for its truth.

In order to be admitted, a hearsay exception needed to be found. No

existing exception applied, although arguably the child’s statement

could have been force-fitted into the category of spontaneous declara-

tions. Madam Justice McLachlin, writing for the court, found that to do

so in the circumstances would deform the spontaneous declaration

rule beyond recognition. Rather, she turned to principle. The princi-

ples turned to were necessity and reliability. Necessity was interpreted

as being “reasonably necessary.” In terms of reliability, that determina-

tion would vary in the circumstances and was best left to the trial

judge. Applying these principles to the case on appeal, the Court ruled

that the child’s statement to her mother should have been received.

Arguably, Khan could have been confined to children’s evidence

and to child abuse cases. This was not to be. Within two years the

Supreme Court of Canada in R. v. Smith made it abundantly clear that

the principles identified in Khan were of a general application.4

Khan and Smith, therefore, expanded the admissibility of otherwise

inadmissible hearsay evidence. They created a residual catch-all, which

was in addition to the existing exceptions and available on a case-by-

case basis. In this respect it was similar to the “other exceptions” cate-

gory found within the Federal Rules of Evidence in the United States.5

What was left unclear was the impact that the principled approach

would have on the existing hearsay exceptions. After all, Chief Justice

Lamer in Smith did observe:

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 prin-

ciples being reliability of the evidence, and its necessity.6

In R. v. Starr the Supreme Court of Canada addressed the status of

the existing hearsay exceptions.7The Court recognized the primacy of

the principled approach. Necessity and reliability are now the touch-

stones for the admissibility of all hearsay evidence. Having said this,

Justice Iacobucci, writing for the majority, was not prepared to abolish

the existing exceptions. He recognized several important functions

served by the hearsay exceptions. First, they add predictability and cer-

tainty, which leads to greater efficiency of court time. Second, they serve

108 The law of Evidence

4 (1992), 15 C.R. (4th) 133 at 148 (S.C.C.).

5 See Federal Rules of Evidence 803(24) and 804(5).

6 Above note 4 at 148.

7R.v. Starr (2000), 147 C.C.C. (3d) 449 (S.C.C.).