1. Principles Underlying the Exceptions

• Author: David M. Paciocco - Lee Stuesser
• Profession: Justice of the Ontario Court of Justice - Professor of Law, Bond University
• Pages: 113-128

Contenidos

• 1. 1) Reasonable Necessity.
• 1. 2) Threshold Reliability.
• 1. 2 (a) Inherent Trustworthiness.
• 1. 2 (b) Can the Evidence be Tested?.

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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 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 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 satisfactory basis for evaluating the truth of the statement.

The hearsay exceptions are governed by the same principles that underlie the hearsay rule. The hearsay rule is in place to improve accurate fact finding by excluding hearsay statements that may well be unreliable or that cannot be adequately tested. In this way the hearsay rule facilitates the search for truth. Hearsay exceptions are also in place to

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facilitate the search for truth by admitting into evidence hearsay statements that are reliably made or can be adequately tested.

What has evolved over time is a long list of hearsay exceptions under common law and statute. Unfortunately, formalism often prevailed as counsel strove to fit evidence within an existing hearsay exception. This led to pigeon-holing of the evidence. Precedent prevailed over principle and evidence was wrongly admitted or excluded. Wig-more observed:

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.¹Wigmore urged greater flexibility based upon two guiding principles: 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 trustworthiness 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 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 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 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.

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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.³The 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 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 declarations. 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 principles turned to were necessity and reliability. Necessity was interpreted as being "reasonably necessary." In terms of reliability, that determination 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.⁴Khan 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 principled approach would have on the existing hearsay exceptions.

In R. v. Starr the Supreme Court of Canada reaffirmed the continued relevance of the existing hearsay exceptions.⁵The Court recognized the 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 recognized several important func-

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tions served by the hearsay exceptions. First, they add predictability and certainty, which leads to greater 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 traditional exceptions with the principled approach. In other words, the traditional exceptions are to be tested against the principles of necessity and reliability, and where the exceptions are found to be wanting they will need to be modified or abolished. For example, in Starr, the traditional exception that admitted hearsay statements of "state of mind" or of "present intentions" was found to be in conflict with the principled approach in that it had the potential to admit unreliable hearsay. The exception, as it stood, simply required that the statements be of "present intentions." There was no requirement that such statements be made in circumstances of reliability. Accordingly, the exception was modified to conform to the principled approach and additional indicia of reliability were imposed. The modified exception now requires that the statement of "present intentions" must appear to have been made in a natural manner and not under circumstances of suspicion.⁶Based on the Starr decision, and affirmed by the Supreme Court of Canada in R. v. Khelawon,⁷the following is a framework for considering the admissibility of hearsay evidence:

1) Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions to the hearsay rule remain presumptively in place.

2) A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by the principled approach. The exception can be modified as necessary to bring it into compliance.

3) In "rare cases," evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case.⁸4) If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity are established on a voir dire.

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There are two additional considerations. First, even where the evidence is admissible under an exception to the hearsay rule or under the principled approach, the judge may still refuse to admit the evidence if its prejudicial effect outweighs its probative value.⁹

R. v. Nicholas is an example of the misapplication of the judicial discretion.¹⁰In Nicholas the trial judge exercised his residual discretion to exclude statements made by a complainant notwithstanding that these statements were both necessary and reliable. The complainant was sexually assaulted in her home. She made a 911 call approximately ten minutes after the attack. The call was audiotaped. She then made a videotaped statement to the police some six hours later. At trial it was accepted that she was too traumatized to testify. The trial judge, however, excluded the statements because the defence could not cross-examine her - even though the trial judge remarked that it was difficult to imagine the utility of any cross-examination. Of importance, the complainant’s evidence would only establish that she was sexually attacked. She could not identify her attacker because her face was covered with a pillow. Identity was going to be established through DNA evidence. The Court of Appeal reversed the trial judge’s ruling. There was no prejudice to the accused in that there really would be little or no point to be served in cross-examination of the complainant. What Nicholas underscores is that trial judges need to weigh the probative value of the hearsay evidence against any valid articulated prejudice. We need to be reminded that hearsay evidence often presupposes that the declarant is unavailable or...