Hearsay Exceptions

• Pages: 124-194

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CHA PTER 5

HE A R SAY EXCEP TIONS

1. PRINCIPLES UNDERLYING THE

EXC EPT IONS

Hearsay evidence may be ad missible under an existing hearsay ex-

ception or may be admitted on a case-by-ca se basis according to the

principles of “necessity and reliability.” “Necessity and reliability”

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 principled approach

it should be modif‌ied, where possible, to bring it into compliance.

The “necessity” requirement is satisf‌ied where it is “reasonably

necessary” to present the hearsay evidence in order to obtain the

declarant’s version of events. “Reliability” refers to “threshold reli-

ability,” 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 satisfactory basis for evaluating the truth of the statement.

“Ultimate reliability” is the weight or value that the trier of fact,

whether judge or jury, gives to the admitted evidence.

The hearsay exceptions are governed by the sa me principles that under-

lie the hearsay rule. The hearsay rule is in place to improve accurate

fact-f‌inding by excluding hearsay st atements that may well be unreli-

able or that cannot be adequately tested. In th is way the hearsay rule

Hearsay Exceptions 125

facilitates the se arch for truth. Hearsay exceptions a re also in place to

facilitate the search for truth by admitting into evidence hea rsay state-

ments that are reliably made or ca n be adequately tested.

What has evolved over time is a long list of hears ay exceptions

under common law and statute. Unfortunately, formalism often pre-

vailed as counsel strove to f‌it evidence w ithin an existi ng hearsay ex-

ception. This led to pigeonholing of the evidence. Precedent prevailed

over principle and evidence was wrongly admitted or excluded. Wig-

more observed:

The needless obstr uction to investigation of truth cause d by the hear-

say rule is due ma inly to the inf‌lexibi lity of its exceptions, to the

rigidly tech nical construct ion of those exceptions b y the courts, and

to the enforcement of the rule when it s contravention would do no

harm, but would assi st in obtaining a complete understandi ng 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 t he evidence

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

was some substitute for cross-exa mination to support the trustworthi-

ness of the statement.

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

approach.2 Khan 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 mother’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 t he examin ing room. Dr. Khan then

examined the mother. Some thir ty minutes after the child had been left

alone with Dr. Khan, the mother and child had essentially t he follow-

ing convers ation:

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

sa y?

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

know what?

Mrs. O: Wh at?

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

his birdie in my mouth, shook it, a nd peed in my mouth.

1 Wigmore on Evidence, 3d e d., vol. 5 (Boston: Litt le, Brown, 1940) at para. 1427.

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

THE LAW OF EVIDENCE

126

Mrs. O: A re you sure?

T: Yes.

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

T: No. He put his birdie in my mout h. 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 wa s produced by semen and a

mixture of semen and sa liva. At trial, the judge ruled that the child wa s

not competent to testify and refused to ad mit the above out-of-court

statement made to the mother.

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 ex-

isting exception applied, although arguably the ch ild’s statement could

have been force-f‌itted into the category of spontaneous declarat ions.

Madam Justice McLachli n, 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 principles

turned to were necessity a nd reliability. Necessity was interpreted as

being “reasonably neces sary.” In terms of reliability, that determin ation

would vary in the circum stances and was best left to the tri al judge. Ap-

plying these pri nciples to the case on appeal, the Court r uled 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 case s. This was not to be. Within two year s the Su-

preme Court of Canada in R. v. Smith made it abundantly clear th at the

principles identif‌ied in Khan were of a general application.4

Khan and Smith, therefore, expa nded the admissibility of otherwi se

inadmissible hearsay evidence. They created a principled approach,

which was in addition to the exi sting exceptions and available on a

case-by-case ba sis. What was left unclear was t he impact that the prin-

cipled approach would have on the existing hearsay e xceptions.

In R. v. Starr the Supreme Court of Canada reaff‌irmed t he continued

relevance of the existing hearsay exceptions.5 The Court recognized the

primacy of the principled approach. Necessity and reliability are now

the touchstones for the admissibilit y of all hearsay evidence. Having said

this, Justice Iacobucci, writing for the majority, was not prepared to abol-

ish the existing exceptions. He recognized several important function s

3 Ibid. at 95.

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

5 R. v. Star r (2000), 147 C.C.C. (3d) 449 (S.C.C.). See also R. v. Khelawon (2 006),

215 C.C.C. (3d) 161 at para. 60 (S.C.C.).