Necessity and the Principled Approach to Hearsay: Repetition of Evidence

Hearsay is presumptively inadmissible.   However, under the principled exception to this rule, hearsay evidence may be admitted  if, on a voir dire, the party seeking to admit the evidence establishes, on a balance of probabilities, sufficient indicia of necessity and reliability.

 R. v. Khelawon, 2006 SCC 57 (CanLII), [2006] S.C.J. No. 57, at para. 2.

Repetition and Necessity

“The criterion of necessity will not operate such as to allow the introduction of evidence which, in itself, may not be necessary because it is merely repetitious of statements already admitted and, for that reason may have little or no probative value, whereas the prejudice to the accused resulting from its admission would be great.”

R. v. Meaney (1996), 1996 CanLII 6635 (NL CA), 111 C.C.C. (3d) 55 (Nfld. C.A.), at para. 42;

See also R. v. C. (R.) (2005), 2005 CanLII 27316 (ON CA), 77 O.R. (3d) 364, at para. 20.

In R. v. Rhayel, the complainant died before trial but had provided a videotaped statement to police as well as had given viva voce evidence at the preliminary inquiry.   Her video statement was not admissible under the principled exception to the exclusion of hearsay as it was not necessary: in large part that evidence was already before the court in the form of the complainant’s testimony at the preliminary inquiry. To admit the video statement would be effectively to admit the complainant’s examination-in-chief into evidence twice.

Further, the video statement was inadmissible as, given its congruence to the admitted preliminary inquiry evidence, it amounted to a prior consistent statement. Prior consistent statements are generally inadmissible because they lack probative value, are often self-serving, and are hearsay.

R. v. Rhayel, 2015 ONCA 377 (CanLII).