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Evidence - Hearsay - Necessity Exception

Evidence - Hearsay - Past Recollection Recorded Exception

R v Louangrath (Ont CA, 2016)

In this case the Court of Appeal discussed the hearsay rule, it's 'necessity' exception, and the exception for 'past recollection recorded':
[20] As an out-of-court statement that was tendered for the truth of its contents, McCarthy’s statement was hearsay evidence.

[21] The admission of hearsay evidence is governed by the following framework set out by McLachlin C.J.C. in R. v. Mapara, 2005 SCC 23 (CanLII), [2005] 1 S.C.R. 358, at para. 15, and reaffirmed in R. v. Khelawon, 2006 SCC 57 (CanLII), [2006] 2 S.C.R. 787, at para. 42, and R. v. Baldree, 2013 SCC 35 (CanLII), [2013] 2 S.C.R. 520, at para. 34:

(a) Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions to the hearsay rule remain presumptively in place.

(b) A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by the principled approach. The exception can be modified as necessary to bring it into compliance.

(c) In “rare cases”, evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case.

(d) If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity are established on a voir dire.

.....

[38] Four particular reliability concerns arise from the unavailability of contemporaneous cross-examination in court, namely the inability to test the declarant’s (i) perception, (ii) memory, (iii) narration, and (iv) sincerity: Khelawon, at para. 2; Baldree, at para. 31.

[39] In Baldree, at para. 32, Fish J. briefly elaborated on these concerns as follows:
First, the declarant may have misperceived the facts to which the hearsay statement relates; second, even if correctly perceived, the relevant facts may have been wrongly remembered; third, the declarant may have narrated the relevant facts in an unintentionally misleading manner; and finally, the declarant may have knowingly made a false assertion. [Emphasis in original.]
[40] The traditional exceptions to hearsay often address these concerns in two ways. The first way is “to show that there is no real concern about whether the statement is true or not because of the circumstances in which it came about”: Khelawon, at para. 62. The second way is “to show that no real concern arises from the fact that the statement is presented in hearsay form because, in the circumstances, its truth and accuracy can nonetheless be sufficiently tested”: Khelawon, at para. 63.

[41] These two methods for establishing threshold reliability are not mutually exclusive, although when the declarant is available for cross-examination, the focus is on the second method, which is demonstrating that the truth and accuracy of the statement can be sufficiently tested: R. v. Devine, 2008 SCC 36 (CanLII), [2008] 2 S.C.R. 283, at para. 22.

[42] Meeting the requirements of the well-established past recollection recorded hearsay exception will generally be conclusive on the admissibility of the tendered evidence, without any further consideration of threshold reliability. That is because its essential conditions and the declarant’s availability for cross-examination address the hearsay concerns on reliability.

[43] The essential conditions for the past recollection recorded exception were set out in R. v. Richardson (2004), 2003 CanLII 3896 (ON CA), 174 O.A.C. 390 (C.A.), by O’Connor A.C.J.O., at para. 24, as follows:
1. Reliable record: The past recollection must have been recorded in a reliable way. This requirement can be broken down into two separate considerations: First, it requires the witness to have prepared the record personally, or to have reviewed it for accuracy if someone else prepared it. Second, the original record must be used if it is available.

2. Timeliness: The record must have been made or reviewed within a reasonable time, while the event was sufficiently fresh in the witness's mind to be vivid and likely accurate.

3. Absence of memory: At the time the witness testifies, he or she must have no memory of the recorded events.

4. Present voucher as to accuracy: The witness, although having no memory of the recorded events, must vouch for the accuracy of the assertions in the record; in other words, the witness must be able to say that he or she was being truthful at the time the assertions were recorded.
[44] Three of these conditions are grounded in establishing threshold reliability – namely, the ‘reliable record’, ‘timeliness’, and ‘present voucher as to accuracy’ conditions – while the ‘absence of memory’ condition addresses the necessity of using the hearsay evidence. Significantly, for the admission of this type of hearsay evidence, the declarant is able to be tested under oath through cross-examination about the circumstances under which the recorded statement was made, and on the basis upon which he or she vouches that the recording of events is accurate.

[45] Though not equivalent to contemporaneous cross-examination of present recollections, meeting those conditions, together with the declarant’s ability to testify about them, assuage the hearsay reliability concerns such that, when necessary, this evidence should be admitted. The trial judge should then instruct the jury that this is a lower form of evidence that calls for extra scrutiny.


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