Simon's Megalomaniacal Legal Resources

Evidence - Hearsay - Statement Against Penal Interest Exception

. R v Young

In R v Young (Ont CA, 2021) the Court of Appeal stated the hearsay exception of statements against penal interest:

[24] The criteria for the declaration against penal interest exception to the hearsay rule were distilled by Watt J.A. in R. v. Tash, 2013 ONCA 380, 306 O.A.C. 173, at para. 88:

The principles that govern the admissibility of declarations against penal interest are these:

i. the declaration must be made to such a person and in such circumstances that the declarant should have apprehended a vulnerability to penal consequences as a result;

ii. the vulnerability to penal consequences must not be remote;

iii. the declaration must be considered in its totality, so that if, upon the whole tenor, the weight of it is in favour of the declarant, the declaration is not against his or her interest;

iv. in a doubtful case, a court might consider whether there are other circumstances connecting the declarant with the crime, and whether there is any connection between the declarant and the accused; and

v. the declarant must be unavailable because of death, insanity, grave illness that prevents the declarant from giving testimony even from a bed, or absence in a jurisdiction to which none of the court’s processes extends.

R. v. Demeter, 1977 CanLII 25 (SCC), [1978] 1 S.C.R. 538, at p. 544; R. v. O’Brien, 1977 CanLII 168 (SCC), [1978] 1 S.C.R. 591, at p. 600; and R. v. Lucier, 1982 CanLII 153 (SCC), [1982] 1 S.C.R. 28, at pp. 32-33.

[25] As the Supreme Court has noted, exceptions to the hearsay rule, such as the exception for declarations against penal interest, “developed for statements carrying certain guarantees of inherent trustworthiness, often because of the circumstances in which they were made”: R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 20.

[26] See also Sidney N. Lederman, Alan W. Bryant & Michelle Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 5th ed. (Toronto: LexisNexis Canada, 2018), at §6.183-6.205; S. Casey Hill, David M. Tanovich & Louis P. Strevos, McWilliams’ Canadian Criminal Evidence, loose-leaf, 5th ed. (Toronto: Thomson Reuters, 2013), at para. 7:200.20.