Satisfying the Necessity Criterion for the Admission of Hearsay (Undue Trauma, Lack of Recollection)
R. v. Wills, 2016 ONCA 965 the Court of Appeal for
Ontario held that that trial judge had erred in admitted the child complainants’
hearsay statements about the alleged offences as evidence at trial based on a
finding that
1. the children would be unlikely to provide a
coherent and comprehensive account of the events due to a lack of present
recollection, and
2. because having to testify in court would cause them
undue trauma.
The trial judge made these determinations based on
evidence from the complainants’ parents and a video recording of brief police
interviews with each child shortly before trial and about a year after their
initial disclosures.
Undue Trauma
Unless the trial judge has had the opportunity to see
the child’s reaction to questioning in the courtroom setting, “it will be a
rare case … where the Crown can establish necessity based on the potential of
psychological trauma without a proper assessment of the child by a qualified
expert”.
R. v. S.M.R. (2004), 24 C.R. (6th) 185 (Ont. C.A.), at para. 45.
In R. v. Wills,
however, the trial judge did not have the opportunity of seeing the children
testify. Their parents’ evidence, which consisted primarily of observations of
changes in each child’s behaviour, was simply not sufficient to displace the
need for a proper assessment by a qualified expert.
R. v. Wills, 2016 ONCA 965 at para 20.
Lack of present recollection
If the witness is physically available and there
is no suggestion that he or she would suffer trauma by attempting to give
evidence, that evidence should generally not be pre-empted by hearsay unless
the trial judge has first had an opportunity to hear the potential witness and
form his or her own opinion as to testimonial competence.
R. v. Parrott, [2001] 1 S.C.R. 178,2001 SCC 377, 2001 SCC
3 (CanLII) at para 77
R. v. Wills the trial judge determined that the child
complainants would be unlikely to provide a coherent and comprehensive account
of the events due to a lack of present recollection based on evidence from
their parents and a brief video recording that did not probe the complainant’s recollection
or ability to speak about the incidents.
The trial judge erred in concluding that the necessity
criterion for admission of evidence based on the principled exception to the
hearsay rule had been met. The
complainants’ ability to communicate the evidence, including their ability to
recollect the events, ought to have been explored more deeply in a voir dire.
R. v. Wills, 2016 ONCA 965 at para 21.
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