Hearsay Exceptions

• Author: David M. Paciocco/Lee Stuesser
• Profession: Justice of the Ontario Court of Justice/Professor of Law, Bond University
• Pages: 113-180

113

CHA PTER 5

HEARSAY EXCEPTIONS

1. PRinCiPlES undERlying THE

ExC EP Tio nS

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 principles for the admissibility of all hearsay. The

existing hearsay exce ptions 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 “reason-

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

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

reliability,” which is for the trial judge. The function of the trial

judge is limited to de termining whether the particular hearsay

statement e xhibits suff‌icient indicia of reliability so a s to afford

the trier of fact a satisfactory ba sis for evaluating the truth of the

statement.

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

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

fact f‌inding by excluding hearsay statements that may well be unreli-

able or th at cannot be adequately tested. In this way the hearsay rule

facilitates t he search for t ruth. Hearsay exceptions a re also i n place to

THE LAW OF EVIDENCE114

facilitate t he search for tr uth by admitting into evidence hearsay state-

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

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

under common law and statute. Unfortunately, formali sm often pre-

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

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

over pri nciple and evidence was wrongly admitted or excluded. Wig-

more observed:

The needless obstruct ion to investigation of truth caus ed by the hear-

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

rigidly tech nical constr uction of those except ions by the courts, and

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

harm, but would assist i n obtaining a complete underst anding 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 subst itute for cross-examination to support the trust worthi-

ness of the statement.

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

approach.2 Khan was a doctor cha rged with sexual ly assaulting a

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

Khan, who wa s their family doctor. The chi ld was examined f‌irst, i n

her mother’s presence. Dr. Khan t hen had the chi ld 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 thirty minutes after the child had been left

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

ing conversation:

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

sa y?

T: He asked me if I wanted a c andy. I s aid yes. And do you

know what?

Mrs. O: What?

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

put his birdie i n my mouth, shook it, and pee d in my

mouth.

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.).

Hearsay Exce ptions 115

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. A nd 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.

The child’s out-of-court statement was being tendered for its t ruth.

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

existing exception applied, although arguably the child’s st atement

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 circum stances would deform the spontaneous declaration

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

ples turned to were necessity a nd reliability. Necessity was inter preted

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

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

Applying t hese pr inciples to the case on appea l, the Court ruled that

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

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

and to child abuse case s. This wa s 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 ba sis. What was left unclear was the impact that the prin-

cipled approach would have on the existing hearsay e xceptions.

In R. v. S tarr the Supreme Court of Canada reaff‌irmed the continued

releva nce of the exi sting hear say exceptions.5 The Court re cognized t he

primacy of the principled approach. Necessity and reliability are now

the touchstones 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 recogni zed several important func-

3 Ibid. at 95.

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 (2 006 ),

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