Threshold Reliability of Hearsay: Motive to Fabricate


The absence of evidence is not evidence of absence.

In R. v. Czibulka, 2004 CanLII 22985 (ON CA), 189 C.C.C. (3d) 199, 190 O.A.C. 1, at paras. 43-45 the Court recognized that where the Crown seeks to tender a hearsay statement under the principled approach to the admission of the hearsay evidence, the record will generally disclose one of the following three scenarios:

1.       Proved absence of motive to fabricate

The Crown may be able to show that the declarant had no known motive to fabricate the hearsay story to this witness about this accused.  Khan and Smith (in respect of the first two statements) were such cases.  



2.      Proved motive to fabricate

Conversely, the circumstances may be such that either because of direct evidence or logical inference it is apparent that the declarant did have a motive to fabricate this story.  Starr and the third call in Smith would seem to be such cases.  



3.       Lack of evidence of motive to fabricate

The case may be one where there is simply no evidence and no logical inference that the declarant had no motive to lie. In such a scenario, motive is in effect a neutral consideration.  Because it is for the proponent of the hearsay evidence to show that it was made under circumstances of trustworthiness, if there are few other compelling circumstances of reliability the application to admit the hearsay statement will probably fail.  If there are other indicia (and for example in Khan there were many others) the statement may or may not be admitted depending on the strength of those other factors on the reliability issue.

Lack of evidence of motive to fabricate is not equivalent to proved absence of motive to fabricate. In other words, a finding that there is simply no evidence one way or the other that the declarant had a motive to fabricate cannot be converted into a finding in favour of the proponent that the declarant had no motive to fabricate.

R. v. Czibulka, at para. 44;

see also, R. v. Ngoddy, 2016 ONSC 5921, aff’d R. v. Ngoddy, 2017 ONCA 499.

Thus, in the context of considering a witness's motive to fabricate, the aphorism the absence of evidence is not evidence of absence has real legal weight.

Stuart O'Connell, O'Connell Law Group (leadersinlaw.ca).


Comments

Post a Comment

Popular posts from this blog

Warrantless Drug Searches (Section 11(7) of the CDSA)

Were there exigent circumstances? Did the exigent circumstances render it impracticable to obtain a warrant? Section 11(7)   of the Controlled Drugs and Substances Act states: (7) A peace officer may exercise any of the powers described in subsection (1), (5) or (6) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one. Subsection (1)   of s. 11 empowers a peace officer to conduct a warranted search of a place for, inter alia , a controlled substance and to seize it. Section 11(7), therefore, empowers a peace officer to conduct a warrantless search for a controlled substance, so long as conditions for obtaining a warrant existed and exigent circumstances made it impracticable for the officer to obtain a warrant. For a warrantless entry into a residence to satisfy section 11(7) , the Crown must show that the entry was compelled by urgency, calling for immediate police action to prese
Read more

Arrested at Home: Feeney Warrants

At common law, where the police had reasonable grounds to arrest a suspect and reasonable grounds to believe a suspect was in a private dwelling-house, they were entitled to enter and arrest the suspect, with or without an arrest warrant, if proper announcement was made. See R. v. Landry , 1986 CanLII 48 (SCC), [1986] 1 S.C.R. 145 , and Eccles v. Bourque et al. , 1974 CanLII 191 (SCC), [1975] 2 S.C.R. 739 ). However, in the 1997 decision of R. v. Feeney , the Supreme Court of Canada ruled that the common law violated s. 8 of the Canadian Charter of Rights and Freedoms and that generally, warrantless arrests within private dwellings were prohibited.  Absent exigent circumstances or cases of hot pursuit, an entry warrant would be required to enter a dwelling house to make an arrest.    R. v. Feeney , 1997 CanLII 342 (SCC), at paras. 44-51.  Parliament responded by enacting sections 529-529.5 of the Criminal Code , which, among other things, creates two distinct authorizatio
Read more

Night time Execution of a Search Warrant

Warrants Authorized under the Criminal Code The Criminal Code requires that if a warrant is to be executed at night (after 9:00 p.m., see Criminal Code , s. 2), the night time execution must be justified under the terms of s. 488 of the Criminal Code .    Section 488 of the Criminal Code is not made applicable to warrants and telewarrants issued under the authority of section 11 of the CDSA, which may be executed “at any time”.  R. v. Shivrattan, 2017 ONCA 23; R. v. Saunders , 2003 NLCA 63, 181 C.C.C. (3d) 268, at paras. 27, 31-32, affirmed on other grounds, 2004 SCC 70, [2004] 3 S.C.R. 505; R. v. Dueck , 2005 BCCA 448, 200 C.C.C. (3d) 378, at paras. 17-21; and R. v. Newell , [2007] O.J. No. 2348, at para. 47 (Ont. S.C.). Warrants Authorized under the Controlled Drugs and Substances Act Unlike warrants issued under the Criminal Code , there is no statutory presumption that warrants issued under s. 11 of the CDSA are to be executed before 9:00 p.m. unless night t
Read more