Hearsay Exceptions

• Author: David M. Paciocco/Lee Stuesser
• Pages: 114-183

Cha pter 5

HEARSAY EXCEPTIONS

1. prINCIpLeS UNDerLYING the eXCeptIONS

Hearsay evidence may be admissible under an existing hearsay ex-

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

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

are the guiding pr inciples for the a dmissibility 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 evide nce 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 deter-

mining whether the particular hearsay statement exhibits suff‌icient

indicia of reliability so as to afford the tr ier of fact a satisfactory

basis for evaluating the truth of the statement.

The hearsay exceptions are governed by the same principles that under-

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

fact f‌inding by excluding hearsay statements that may well be un reli-

able or that can not be adequately tested. In this way the hearsay rule

facilitates t he search for truth. Hearsay exceptions are al so in place to

facilitate the search for t ruth by admitting i nto evidence hearsay state-

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

114

Hearsay Exce ptions 115

What has evolved over t ime is a long list of hea rsay exceptions

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

vailed as counsel strove to f‌it evidence within an existing hearsay ex-

ception. This led to pigeon-holing of the evidence. Precedent prevailed

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

more observed:

The ne edles s obst ructi on to inv estig ation of truth cause d by the hears ay

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

technical constr uction of those exceptions by the courts, and to the en-

forcement of the r ule when its contravention would do no har m, but

would assist in obta ining a complete understanding of the tr ansaction.1

Wigmore urged greater f‌lexibility based upon two guiding prin-

ciples: necessity and reliability. The principle of necessity arose from

the choice of either receiving the ev idence untested or losing the evi-

dence entirely. In assessing the reli ability of the evidence, what was

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

trustworth iness of the statement.

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

proach.2 Kha n 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. Kh an then had the child wait i n 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 essentia lly the following conversation:

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

T: He a sked 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 p eed 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 bir die in my mouth. And he never did give

me my candy.3

1 Wigmore on Evidence, 3d e d., vol. 5 (Boston: Little, Brown, 1940) at para. 14 27.

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

3 Ibid. at 95.

THE LAW OF EVIDENCE116

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

subsequent te sts showed that the spot was produced by semen a nd 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.

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. M adam Justice McL achlin, writing for the court, found that to

do so in the ci rcumstances would deform the spontaneous decla ration

rule beyond recognition. Rather, she turned to principle. The principles

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

being “reasonably necessary.” In terms of reliability, that determinat ion

would var y in the circumstances and was best left to the tri al judge.

Applying these pr inciples to the case on appeal, the Court ruled that

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

Arguably, Kh an could have been conf‌ined to children’s ev idence

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

preme 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 principled approach,

which was in addition to the existing exceptions and available on a

case-by-case basis. What was left unclear was the impact that the pri n-

cipled approach would have on the existing hearsay e xceptions.

In R. v. Sta rr the Sup rem e C our t of Ca nad a r e-a ff‌i rme d t he c ont in ued

relevance of the exi sting hearsay exception s.5 The Court recogni zed the

primacy of the principled approach. Necessity and reliability are now

the touchstones for the admi ssibility of all hearsay evidence. Having

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

abolish the e xisting exceptions. He recogn ized several important func-

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

certainty, which leads to gre ater eff‌iciency of court time. Second, they

serve a valuable educative function by providing a useful guide as to the

admissibility of hearsay in specif‌ic factual contexts. Third, they assist

in reinforcing that “necessity” is really a search for the best evidence

available. For these reasons Justice Iacobucci chose to “rationalize” the

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

5 R. v. Starr (2000), 147 C.C.C. (3d) 449 (S.C.C.). See also R . v. Khelawon (20 06),

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