Hearsay 5: General Exception

Where we are at: Starr (SCC) Rule #1 Rule #1 Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule.

Rule #2 Rule #2 The traditional exceptions to the Hearsay Rule remain presumptively in place.

Challenging the Exception Rule #3 Rule #3 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 to bring it into compliance.

Challenging the Evidence, Not the Exception Rule #4 Rule #4 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.

Rule #5 Rule #5 If hearsay evidence does not fall under a traditional known exception, it may still be admitted if necessity and reliability are made out, on a Balance of Probabilities, on a voir dire.

In the event of a conflict between the traditional exceptions and the principled exception, the principled exception prevails. In the event of a conflict between the traditional exceptions and the principled exception, the principled exception prevails.

Analysis Therefore our analysis of any Hearsay problem is as follows: Therefore our analysis of any Hearsay problem is as follows: (a) Identify the impugned evidence as Hearsay or not Hearsay. (b) If Hearsay, analyze admissibility against the specific/traditional exceptions which may apply. If one is found to apply, analysis ends, evidence is admissible (subject to a Starr challenge to the exception itself, or its application in the particular case). (c) If no specific exception applies, analyze the admissibility of the evidence against the dual requirements of the general exception.

Note on Starr challenge Where hearsay evidence is admissible under a traditional exception, the onus is on the challenger to the exception or its application in this case to show a lack of necessity and reliability. Where hearsay evidence is admissible under a traditional exception, the onus is on the challenger to the exception or its application in this case to show a lack of necessity and reliability. This is a reversal of the usual onus which makes the proponent responsible for bringing the evidence within the exception. This is a reversal of the usual onus which makes the proponent responsible for bringing the evidence within the exception.

Necessity The first requirement under the general exception. The first requirement under the general exception. This requirement must be met for the general exception to be made out. This requirement must be met for the general exception to be made out.

Necessity Necessity addresses the issue of the source of the evidence. Necessity addresses the issue of the source of the evidence. It asks the proponent to demonstrate, on a balance of probabilities, why the evidence must be received in this manner (through a hearsay source), without the source of the testimonial value before the Court. It asks the proponent to demonstrate, on a balance of probabilities, why the evidence must be received in this manner (through a hearsay source), without the source of the testimonial value before the Court.

Examples (a) Necessity includes physical unavailability of the witness: death, illness preventing testimony,moved, absconded, unknown whereabouts etc. (b) Necessity includes the unavailability of testimony, not only the unavailability of the witness: e.g. unwilling witness, retracting witness.

Necessity: Examples (c) Necessity can even be met when the source of the testimonial value is available and willing, even where they actually take the stand, but are, for example, unhelpful with respect to the statement proferred: e.g. the Ares v. Venner nurse who relies on her notes; the child witness who is competent, but does not presently remember the events, but did earlier describe the events to others, who are called to repeat same as an exception to the hearsay rule.

Necessity: Examples (d) Actual or real, apprehended trauma for a particular witness: e.g. child or other psychologically fragile witness, due to the person or circumstances. (Note: are there other ways we can deal with these concerns?) (e) Incompetence: mental incompetence (Khan), or spousal incompetence (Hawkins)

Necessity: what its not. Fear or disinclination to testify. Fear or disinclination to testify. Proponent simply prefers the evidence come in this way, with no real attempt at finding source of testimonial value or bringing them to the Court; interviewing and preserving their evidence in appropriate circumstances; or source witness not asked on the stand about the statement, but proponent explores the statement with other witnesses. Point: tactical decisions do not make out necessity. Proponent simply prefers the evidence come in this way, with no real attempt at finding source of testimonial value or bringing them to the Court; interviewing and preserving their evidence in appropriate circumstances; or source witness not asked on the stand about the statement, but proponent explores the statement with other witnesses. Point: tactical decisions do not make out necessity.

Necessity: What its Not Necessary is not “necessary to the proponent’s case.” It is the unavailability of the declarant’s testimony. Necessary is not “necessary to the proponent’s case.” It is the unavailability of the declarant’s testimony. Unavailability of the witness is one factor, not the determinative factor or even a necessary condition. Unavailability of the witness is one factor, not the determinative factor or even a necessary condition.

Necessity: Specific Procedural Rules If mental incompetence of the source witness is the basis for the suggested “unavailability”, the source witness, in general, should be called on the voir dire for the TOL to make its own determination. If mental incompetence of the source witness is the basis for the suggested “unavailability”, the source witness, in general, should be called on the voir dire for the TOL to make its own determination.

Necessity: Specific Procedural Rules Medical evidence may be called to establish unavailability, even where the source witness is not called on the voir dire. Medical evidence may be called to establish unavailability, even where the source witness is not called on the voir dire.

Necessity: Specific Procedural Rules Some courts have held that the proponent must make reasonable efforts to bring the source witness to Court, or necessity may not be made out. Some courts have held that the proponent must make reasonable efforts to bring the source witness to Court, or necessity may not be made out.

Necessity: Can be Statement Specific R. v. Khan versus Khan (No. 2), College of Physicians and Surgeons R. v. Khan versus Khan (No. 2), College of Physicians and Surgeons Criminal Trial: child complainant determined incompetent to testify. Out-of-court statements regarding event made to mother and others admitted. Disciplinary Hearing: child now competent, but has little recollection of event and out-of-court declarations. Held: necessity made out, in the sense of necessary to get the child’s version before the Court in all of its detail, but not all statements to all persons admissible. Those more proximate to event admitted, those more spontaneous, those more comprehensive. Those that are simply repetitious are not necessary.

Lamer C.J.C. in Smith On the issue of necessity, the relevant question is not whether the evidence is necessary in an “absolute sense”, but rather whether it is reasonably necessary in the circumstances. Necessity must be given a “flexible definition” capable of encompassing diverse situations.

Lamer C.J.C. continued Necessity would arise where (1) the person whose assertion was offered was dead, out of the jurisdiction, insane, or otherwise unavailable; or (2) where the assertion was such that it was unreasonable to expect to obtain evidence of the “same value from the same or other sources.”

Necessity It is clear that what can qualify as “necessary” is constantly being re-defined and expanding. What is “reasonably necessary” depends on the circumstances of the case, and is only limited by the imagination of the proponent. The categories of necessity are not closed. It is clear that what can qualify as “necessary” is constantly being re-defined and expanding. What is “reasonably necessary” depends on the circumstances of the case, and is only limited by the imagination of the proponent. The categories of necessity are not closed.

Necessity Is a Question of Law for the TOL. Is a Question of Law for the TOL. Must be determined on a case by case basis. What is necessary in one case, may not be in another, even if seemingly the same. Must be determined on a case by case basis. What is necessary in one case, may not be in another, even if seemingly the same.