Hearsay Made Necessary by a Recanting Witness
The fact that a witness is available at trial does not preclude her prior statement from being necessary. With respect to the test of necessity, a number of cases have held that this test is met when a witness recants or in some other fashion effectively holds hostage evidence that cannot be obtained from another source. In both K.G.B. and R. v. U. (F.J.) , 1995 CanLII 74 (SCC),[1995] 3 S.C.R. 764, for instance, the majority of the Supreme Court held that the necessity test was met when a witness recanted on an earlier statement. The earlier statement was necessary evidence because evidence of the same quality could not be obtained at trial. 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 .