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....