Exceptions to the Hearsay Rule
Test for Admissibility
1. Necessity
This indicium refers to the availability of the evidence, not the availability of the hearsay declarant as a witness. The physical availability of the declarant does not necessarily put rest to any claim of necessity: R v Kler, 2017 ONCA 64 at para 77
Necessity is not met where the statement is repetitious of statements already made/admitted into evidence, and therefore of little probative value relative to the prejudicial impact of the evidence. Where a declarant made multiple hearsay statements,, therefore, only one can be considered admissible: R v. Rhayel, 2015 ONCA 377
2. Threshold Reliability
Considering Corroborative Evidence
A trial judge can only rely on corroborative evidence to establish substantive reliability if it shows, when considered as a whole and in the circumstances of the case, that the only likely explanation for the hearsay statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement.
First, corroborative evidence must go to the truthfulness or accuracy of the material aspects of the hearsay statement.
Second, corroborative evidence must assist in overcoming the specific hearsay dangers raised by the tendered statement. Corroborative evidence does so if its combined effect, when considered in the circumstances of the case, shows that the only likely explanation for the hearsay statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement. Otherwise, alternative explanations for the statement that could have been elicited or probed through cross‑examination, and the hearsay dangers, persist.
In short, the test to determine whether corroborative evidence is of assistance in the substantive reliability inquiry is as follows:
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identify the material aspects of the hearsay statement that are tendered for their truth;
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identify the specific hearsay dangers raised by those aspects of statement in the particular circumstances of the case;
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based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement; and
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determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternative explanations such that the only remaining likely explanation for the statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement: R v Bradshaw, 2017 SCC 35
Lack of Opportunity to Cross Examine
Where the accused is deprived of a meaningful opportunity to cross-examine the complainant, this may render a statement unreliable and inadmissible, under the right circumstances: Zaba, see cases cited at para 13; see also para 16.
The accused's loss of opportunity to cross-examine on the declarant's demeanour on a videotaped statement may serve to defeat the introduction of an out of court video statement: R v PMC, 2016 ONCA 829 at paras 27-28
Standard of Review
Absent an error in principle, the trial judge’s determination of threshold reliability is entitled to deference: R v Woodman, 2016 ONCA 63 at para 13; R v Zaba, 2016 ONCA 167 at para 11
Specific examples from the case law
A guilty plea by a co-accused, not called at trial, cannot be used to support the Crown's case: R v CG, 2016 ONCA 316, at paras 7-8
Exceptions to the Hearsay Rule
Co-Conspirator's Exception
See R v Kler, 2017 ONCA 64 at paras 63-84
The co-conspirators' exception to the hearsay rule permits statements made by a person engaged in an unlawful conspiracy to be received as admissions against all those acting in concert if the declarations were made while the conspiracy was ongoing and were made towards the accomplishment of the common object. The exception extends beyond statements to acts done by co-conspirators during the currency of the conspiracy in furtherance of its objects
The statement (or objects) must be made by a "person engaged in an unlawful conspiracy". A person is "engaged in an unlawful conspiracy" if his or her own acts or statements establish his or her probable membership in it. The statement must also be made by the conspirator "while the conspiracy was ongoing." On some occasions, however, statements made after the offence object of the conspiracy has been committed may be admissible under this exception. Finally, the statement of the co-conspirator must be made "in furtherance of" the offence that is the object of the conspiracy.
In order to be admissible, the trier of fact must first find: 1) beyond a reasonable doubt, that there was a conspiracy; 2) there is other evidence directly receivable against the accused (i.e., his words and/or actions) showing, on a balance of probabilities, that the accused was a member of the conspiracy; and 3) there is some evidence capable of sustaining a finding that a statement of a co-conspirator was "in furtherance" of the conspiracy.
Once this threshold is met, the jury may then consider the hearsay statements in making the ultimate determination of whether: 1) the statement is in fact "in furtherance" of the conspiracy; and 2) the accused was in fact a member of the conspiracy.
The co-conspirator's exception to the hearsay rule is subject to the principled approach to hearsay, and can be challenged on the basis of necessity and reliability. If necessary, the traditional exception may be modified to bring it in line with the principled approach. The onus falls upon the party seeking exclusion to establish that the evidence, admissible under the co-conspirators' exception, does not meet the requirements of necessity and reliability and, thus, should be excluded. It will be an exceptional case where the exception does not meet the principled approach.
In charging the jury on this issue, the trial judge should instruct them to consider whether on all the evidence they are satisfied beyond a reasonable doubt that the conspiracy charged in the indictment existed. If so, they must then review the evidence and decide whether, on the basis of the evidence directly receivable against the accused, a probability is raised that he was a member of the conspiracy. If this conclusion is reached, they then become entitled to apply hearsay exception and consider evidence of the acts and declarations performed and made by the co‑conspirators in furtherance of the objects of the conspiracy as evidence against the accused on the issue of his guilt. This evidence, taken with the other evidence, may be sufficient to satisfy the jury beyond a reasonable doubt that the accused was a member of the conspiracy and that he is accordingly guilty.