The Hearsay Exceptions: A Game of 'Rock, Paper, Scissors
| Author | David M. Paciocco |
| Pages | 17-55 |
The
Hearsay Exceptions:
A
Game
of
"Rock,
Paper,
Scissors
David
M.
Paciocco*
A.
INTRODUCTION
The law
relating
to
hearsay
was at the
vanguard
of the
principled
approach
that
has now
become standard
fare
in the law of
evidence.1
It
was the
sordid
and all too
familiar
saga
of Dr.
Khan
and his
predation
of
an
innocent child that ultimately broke
the law of
evidence
open,
causing
it to
cast
off
the
shackles
of
rigid rules.
In R. v.
Khan?
the
child's
out-of-court
statement
to her
mother, made within minutes
of
leaving
Dr.
Khan's
office,
was so
patently
reliable,3
yet so
obviously inadmissi-
ble, that
the law was
changed
so
that
the
statement could
be
received.
Henceforth,
the
admission
of
hearsay would
not be
confined
to
informa-
*
Of the
Common
Law
Section, University
of
Ottawa,
Edelson
&
Associates.
1 The
"principled approach" identifies admissible evidence,
not
according
to
precise rules
or by
developing categories
of
admissible proof,
but
rather
according
to the
application
of
broad principles. Those principles
are
intended
to
enable contextual examination
to be
made,
to
ensure
that
admissibility
holdings reflect
the
purposes behind
the
relevant rules.
A
"principled
approach"
is
used,
for
example,
for
determining
the
admissibility
of lay
opin-
ion
evidence
(R. v.
Graat,
819), expert
opinion
evidence
(R. v.
Mohan,
9),
similar
fact
evidence
(R. v.
Arp
(1998),
129
C.C.C.
(3d)
321
(S.C.C)),
and
privilege
(R. v.
Gruenke,
2
(1990),
79
C.R. (3d)
1
(S.C.C.)
[Khan].
3 See the
reasons
why the
evidence
was
patently
reliable
in the
text below,
accompanying note
43.
17
18
DAVID
M.
PACIOCCO
tion
fitting
within predefined exceptions.
It
would
be
receivable,
as a
matter
of
discretion,
whenever
it
satisfied
the
"principled approach"
according
to the
criteria
of
"necessity"
and
"reliability."
The
"principled"
approach
to the
admission
of
evidence
remains
controversial. Rules
are
not,
by
their nature, supposed
to be
flexible;
they
are
meant
to
provide uniform, generalized,
and
mandatory direc-
tions
in the
settlement
of
legal controversies.
Nor are
judges, according
to the
rule
of
law, supposed
to
have choice about
how to
decide
a
case.
Yet
rules
can
often
fail
to
achieve their underlying
purpose.
Hence
the
attraction
of the
principled approach.
Since
Khan
was
initially decided,
an
accommodation
of
sorts
between certainty
and
flexibility
is
being achieved.
The
seemingly sim-
ple and
unstructured approach
to the
admissibility
of
hearsay embraced
by
the
principled
approach
has
evolved
to the
point where what
can
only
be
called
"rules"
are
being superimposed
on
these principles,
thereby reducing
the
scope
of the
discretion. This
was an
inevitable
and
positive development. Appeal courts, presented with issues
of
admissi-
bility
in
subsequent cases, have provided guidance
on the
operation
of
those
principles, thereby giving
the
principles
structure
and
form;
this
is
precisely
how the law
matures
in a
system
of
precedent.
Unfortunate-
ly,
the
"rules"
that overlay
the
discretion
are not
always clear,
nor are
they always optimal. Still, under
the
principled hearsay exception,
the
pendulum
is on its
return stroke
after
reaching
the
apex
of
discretion.
Paradoxically,
while
the
discretion inherent
in the
principled excep-
tion
to the
hearsay rule
in
Khan
was
being made
subject
to
rules,
the
pre-
viously existing hearsay exception rules,
the
pure
form,
classical rules,
have
now
been made
subject
to
discretion, which discretion
is
itself
sub-
ject
to
principle.
If a
hearsay exception either
generally,
or in
application
in a
particular case, does
not
respect
the
principles
of
"necessity"
and
"reliability,"
the
judge
has a
discretion, again controlled
by
principle,
to
refrain
from
applying
the
hearsay exception. This development, which
occurred
in R. v.
Starr?
is
also
a
positive development, given
the
impor-
tance
of
leaving
the law
flexible
enough
to
meet
the
needs
of the
truth-
seeking process.
This approach will
not
appeal
to
everyone.
I
admit,
we
have
now
reached
the
point
where arguing about
the
admissibility
of
hearsay
is a
bit
like playing "rock, paper, scissors," with principles bashing rules,
discretion covering principles,
and
rules cutting discretion.
The
main
4
(2000),
147
C.C.C.
(3d)
449
(S.C.C.)
[Starr].
The
Hearsay
Exceptions:
A
Game
of
"Rock,
Paper,
Scissors"
19
difference
between
the
original game
and the
hearsay game
is
that
whereas
the
original game
of
"rock,
paper,
scissors"
has
clear rules
for
declaring
a
winner,
the
hearsay version
is
less predictable. Given what
is at
stake,
it is
nonetheless
the
right game
to be
playing.
B.
THE
EVOLUTION
FROM
RULES
TO
PRINCIPLES
As
indicated,
it is the
decision
in R. v.
Khan5
that
is
credited with ushering
in a new
approach
to the
admission
of
hearsay.
The
trial judge
in
Khan,
applying
the law as it
was,
had
excluded
the
child's statement
as
hearsay.
He
also
found
her
incompetent
to
testify,
thereby ending
the
prosecution
case.
The
Crown appealed.
The
Ontario Court
of
Appeal, sensing that
the
law
produced
a
preposterous result,
did
what many courts
had
hitherto
done
in
similar situations.
To get the
hearsay evidence
in, it
took
an
expansive
view
of an
exception,
in
this case,
the
"spontaneous exclama-
tion"
exception.6
Technically, that exception
was not
really met.
The
child,
in
her
innocence,
was not
startled
by
what
the
doctor
had
done.
She was
under
no
apparent pressure,
and was
clearly narrating,
in a
matter
of
fact
way,
an
incident that
was
over. When
the
matter reached
the
Supreme
Court
of
Canada, Justice McLachlin said that
to use the
spontaneous
exclamation
exception
in a
case like this "would
...
deform
it
beyond
recognition
and is
conceptually
undesirable."7
Instead,
she
turned
to the
first
principles
of
"necessity"
and
"reliability."
Khan
was not the
first
case
to
identify
general principles underlying
hearsay exceptions.
Two
decades
before,
the
Supreme Court
of
Canada
had
identified
the
same, basic underlying principles
of
necessity
and
reliability8
in
Ares
v.
Venner9
to
ground
the
admission
of
nurses'
notes
in
a
medical malpractice case.
The
primary significance
of
Ares
v.
Venner
is
5
Supra
note
2.
6 The
exception applies where
the
speaker
is so
caught
up in the
startling event
and so
overwhelmed
by its
pressure
that
she
would
have
no
realistic prospect
for
reflection
or the
concoction
of a
false
account. Such
statements
are not
nar-
rations
of
past
events,
but
exclamations that emanate
from
the
lingering
effects
of
the
event.
Ratten
v.
R.,
(RC.)
[Ratten].
7
Supra
note
2 at 11.
8 The
Court
did not use the
term "reliability"
but
looked instead
for
"circum-
stantial guarantees
of
trustworthiness,"
a
phrase
that
is
interpreted
to
mean
the
same
thing
as the
current term, "indicia
of
reliability."
9
(1970),
12
C.R.N.S.
349
(S.C.C.).
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