Establishing Hearsay Necessity

For centuries, the law of hearsay in Canada and other common law countries had been strictly governed by a general exclusionary rule, and a broad and complex array of exceptions judicially developed and refined over time.  Under this long-standing legal regime, the law of hearsay may not have seemed concerned with any unifying legal principle, but it was certain and practical in its routine application.  With its landmark decision in Khan, however, the Supreme Court of Canada ushered in a new era, holding that even hearsay evidence that did not fall within one of the traditionally recognized exceptions to the exclusionary rule would still be admissible if it met the twin criteria of reliability and necessity. 

R. v F.C., 2015 ONSC 6428 (CanLII).

Necessity

Necessity refers to the necessity of the hearsay evidence to prove a fact in issue, and thus relates to relevance and availability of evidence.

See M. Fuerst, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (3rd ed. 2009), at p. 257.)

Necessity should not be approached on the basis that the case must fit into a pre-ordained category.  The instances where “necessity” may be found, are not closed

See R. v. F.(W.J.) 1999 CanLII 667 (SCC), 138 C.C.C. (3d) 1 S.C.C, at para 36,

The courts have made it clear that on the issue of necessity, the relevant question is not whether the admission of the tendered hearsay evidence is necessary in an absolute sense, but rather whether the hearsay evidence is reasonably necessary in the circumstances. 

In this context “necessity” has been given a broad and flexible definition that is capable of covering diverse situations.  More specifically, in R. v. Smith, [1992], S.C.R. 915, at pp. 933-934, Lamer C.J.C. suggested that 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.” 

See Khan v. College of Physicians and Surgeons (1992), 1992 CanLII 2784 (ON CA), 9 O.R. (3d) 641, 76 C.C.C. (3d) 10 (C.A.); R. v. Rockey, 1996 CanLII 151 (SCC), [1996] 3 S.C.R. 829, 110 C.C.C. (3d) 481, at paras. 20, 28; R. v. Hawkins, 1996 CanLII 154 (SCC), [1996] 3 S.C.R. 1043, at pp. 1082-1083; R. v. F.(W.J.), 1999 CanLII 667 (SCC), [1999] 3 S.C.R. 569, 138 C.C.C. (3d) 1, at paras. 35-41; R. v. Parrott, 2001 SCC 3 (CanLII), [2001] 1 S.C.R. 178, at paras. 64-66, 71-77; R. v. Campbell, 2002 NSCA 35 (CanLII), 163 C.C.C. (3d) 485, at paras. 33-44; R. v. R.(R.), 2003 SCC 4 (CanLII), [2003] 1 S.C.R. 37; R. v. Dhaliwal, 2015 ONSC 214 (CanLII), at para. 11.

Necessity should not be understood as meaning “necessary to the successful prosecution of the Crown’s case”.  Necessity arises ultimately from the fact that the witness’s courtroom testimony is unavailable.

See: R. v. F.(W.J.), at para. 33.

The Recanting Witness

Where a witness recants, that satisfies the necessity requirement. 

R. v. Taylor, 2015 ONCA 448 (CanLII), 325 C.C.C. (3d) 413, at para. 69; R. v. Khelawon, 2006 SCC 57 (CanLII), [2006] 2 S.C.R. 787, at para. 78; and R. v. Youvarajah, 2013 SCC 41 (CanLII), [2013] 2 S.C.R. 720, at para. 22.

Testimonial Incompetence

In R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531, the infant complainant was found by the trial judge not to be competent to testify herself.  In this sense, hearsay evidence of her statements was necessary, in that what she said to her mother could not be adduced through her.  It was her inability to testify that governed the situation. 

However, 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 SCR 178, 2001 SCC 3 (CanLII), at para. 77

Cognitive Deficits

A Court should not be quick to leap to the assumption that a person with mental disabilities is not competent to give useful testimony. Persons with disabilities should not be underestimated. Further, trauma should not be presumed, not only because such a presumption would deprive the accused of the ability to observe and cross-examine the witness, but also because stereotypical assumptions about  persons with disabilities should be avoided.

See R. v. Parrott, [2001] 1 SCR 178, 2001 SCC 3 (CanLII), at para. 80.

The Psychological Trauma of Testifying

In R. v. S.M.R. (2004), 2004 CanLII 31916 (ON CA), 24 C.R. (6th) 185 (Ont. C.A.), at para. 45, Doherty J.A. stated that, 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”.

In R. v. Wills, 2016 ONCA 965 (CanLII), the trial judge did not have the opportunity of seeing the children testify. Their parents’ evidence was simply not sufficient to displace the need for a proper assessment by a qualified expert. 

No Present Recollection

The witness’s ability to communicate the evidence, including their ability to recollect the events, ought to be addressed in a voir dire.

 R. v. Parrott, 2001 SCC 3 (CanLII), [2001] S.C.R. 178, at paras. 56 and 57;

See also, R. v. Wills, 2016 ONCA 965 (CanLII): not sufficient for the trial judge to infer no present recollection based on evidence from the complainant’s parents and a video recording of brief police interviews with the children witnesses.

Child Witness: the need for a full and frank account of events

It may be that necessity can also be established where the child testifies, if the trial judge is satisfied that the admission of the out-of-court statement is reasonably necessary in order to put a full and frank account of the child's version of the relevant events before the jury:

Khan v. College of Physicians & Surgeons of Ontario (1992), 1992 CanLII 2784 (ON CA), 76 C.C.C. (3d) 10 (Ont. C.A.), at p. 24; R. v. Rockey, 1996 CanLII 151 (SCC), [1996] 3 S.C.R. 829 (dissent).

Witness Outside the Jurisdiction

--Necessity cannot be equated with the unavailability of a witness—

In the case of R v. O’Connor (2002) 2002 CanLII 3540 (ON CA), 62 O.R. (3d) 263 (O.C.A.) an out of court statement of a witness in Buffalo, New York was used to prove the truth of its contents.  On appeal the Court held that it was impermissible hearsay.  On the issue of necessity the Court stated at paragraph 57:

I have serious reservations whether Grodem’s statement meets the necessity requirement for the admission of hearsay statements.  It is not sufficient for the Crown to simply show that a witness is not compellable because he or she is out of the jurisdiction to satisfy the necessity requirement.  Efforts should be made to pursue other options (teleconferencing or taking commission evidence are two) before one reaches the conclusion that admitting evidence by way of hearsay statement is necessary.  Necessity cannot be equated with the unavailability of a witness.  Rather, it must be shown that hearsay is the only available means of putting the evidence before the court: 

R. v. Finta (1992), 1992 CanLII 2783 (ON CA), 73 C.C.C. (3d) 65, 92 D.L.R. (4^th) 1 (Ont. C.A.) at p. 199 C.C.C.; R. v. Orpin (2002), 2002 CanLII 23600 (ON CA), 165 C.C.C. (3d) 56 (Ont. C.A.) at pp. 68-73.

In the civil context this reasoning was applied in Independent Multi-Funds Inc. v. Bank of Nova Scotia, [2004] O.J. No. 340 (S.C.) where Lane, J. stated at para. 96:

It is not enough to show that the witness is not compellable because he or she is out of jurisdiction; other options to obtain the evidence must be pursued and it must be shown that the hearsay is the only available means of putting the evidence before the court.

The Common Design or Co-conspirators’ Exception

A long-standing and somewhat controversial exception to the hearsay rule is the co-conspirator’s exception or the common criminal enterprise exception.  The exception is that the acts or declarations of a member of criminal conspiracy, or a member of common criminal enterprise, made in furtherance of the conspiracy or enterprise are admissible against all members of the conspiracy or enterprise.

In R. v. Mapara, [2005] 1 S.C.R. 358,  2005 SCC 23, the Supreme Court held that the co-conspirators’ exception generally meets the requirements of the principled approach to the hearsay rule (para. 31).  The Court, at para. 18, described how the necessity requirement is built-in to the co-conspirator exception:

The criterion of necessity poses little difficulty.  As stated in Chang [at para. 105], “necessity will arise from the combined effect of the non-compellability of a co-accused declarant, the undesirability of trying alleged co-conspirators separately, and the evidentiary value of contemporaneous declarations made in furtherance of an alleged conspiracy.”

[Emphasis added].