)

RECENT HEARSAY DEVELOPMENTS:KHAN / SMITH / K.G.B.

Carol Snell, Q.C.Public Prosecutions Branch

SaskatchewanJusticeRegina, Sa~k. S4P3V7

Ph: 787-5490'Fax: 787-8878

BIOGRAPHICAL INFORMATION

Car()ISl1eU,Q.C.. .

, '

G!irolrec~ivedaB.A. from Queen'sUniver$ity in1972andh~rl.L.B. fr~mtheUniversityofSaskatche\yanin 1977. She· was called'tCl. the,.Saskatchewan "Bar in ·.t978.· 'Carol practises i,n>theareaof CriminalLaw .'(Prosecution .• Side). Since 1985, she has been a lecturer atthe~cu.Admission Course on the YoungOffenders.Act,.·and in 1984,'and,,1993.Iectur~d·. on Appellate Advocacy;',""',ln 1992, Carol was 'Ghairiof theCriminal ,Law Section of the Uniform . Law Conference of Canada, and since 1992 has be~n 8hairoftheFederal/Provincial/Territorial Working ~roup'on ,lmplementation.•'ofMental.·.Dis9:rd,er Arnenqments, .•to theCriminaI Code.She is a rn~mberof the FederaVPro"incialrr~rritorial Working Groups·.on'Sentencing;andis on.the National Task Force ion High RiskYioltmtOftenders.·.···.ln ~hepast,Carol.has .bt:l~na consultantwith the Law Reform Gommission9f Canada. She hasanumb~r,ofYEt!ir.$experienceintrial.pros,e9ution

and i~ Appellate.Advocacywhich included appearances in the Supreme Court ofCanada. Carol is .Dire9tor, otSpecial Projects,·Public Prosecutions Branch, Saskatchewan Justice in Regina.

)TABLE OF CONTENTS

Page

I Introduction 1

n Khan, Smith & K.G.B 1

A. R. v. Khan 1B. R. v. Smith 3C. R. v. K. G.B 6

ill The New Rule for the Admissibility of Hearsay Evidence 13

IV Review of Subsequent Decisions 16

A. ApplicationlRejection of Khan & Smith 16

1. Cases where the declarant is deceased 162. Child witness cases 183. Statements of co-accused 234. Miscellaneous 24

B. Application of K.G.B 25

C. Civil Cases 27

Recent Hearsay Developments: KhanlSmithlK.G.B. Carol Snell, a.c.

RECENT HEARSAY DEVELOPMENTS: KHAN/SMITH/K.G.B.

I. INTRODUCTION

Three Supreme Court of Canada decisions have altered dramatically the law on the admissibility

of hearsay evidence. In this paper, those judgments will be discussed in detail. The new rule

for the admissibility of hearsay evidence will be examined and cases which have applied or

commented on the decisions will be reviewed.

II. KHAN, SMITH & K.G.B.

A. R. v. KHAN]

The accused was a physician charged with sexual assault of a 3 1/2 year old girl. At the time

of the trial the child was 4 1/2 years old. The child spent some time alone with the physician.

About 15 minutes after they left the doctor's office the child's mother asked if she had been

talking to Dr. Khan and the child then stated:

He asked me if I wanted a candy. I said yes. And you know what? He said"open your mouth". And you know what? He put his birdie in my mouth, shookit and peed in my mouth.

The mother testified that the word "birdie" meant penis to the complainant.

Real evidence in the fonn of a spot on the sleeve of the complainant's jogging suit was found

to have been produced by a deposit of semen, and in some areas, a mixture of semen and saliva

that had soaked through the fabric before it dried. A forensic biologist stated that the substances

were probably mixed before they were applied to the material.

1(1990),59 C.C.C. (3d) 92; [1990J 2 S.CR. 531; (1990),79 CR. (3d) 1Note: As Khan, Smith & K.G.B. are referred to repeatedly throughout this paper, they will notbe footnoted after the first reference.

2

The trial judge refused to allow the child to give evidence and held the child's statement could

not be given by the mother. Accordingly, an acquittal resulted.

The Court of Appeal for Ontario held that the trial judge had improperly excluded the evidence

of the child but also had erred in failing to admit the child's statement on the basis that it was

a spontaneous declaration.

In her decision, Madam Justice McLachlin held that the trial judge erred in holding that the child

was incompetent to give unsworn evidence. She also held that on the traditional test for a

spontaneous declaration the statement, as repeated by the mother, was properly excluded.

Further, she concluded that it would not be appropriate to expand the concept of spontaneous

declarations in order to make the statement admissible because that would deform the rule

beyond recognition and was conceptually undesirable.

Instead, McLachlin, J. analyzed a number of child protection cases and noted that the progression

towards admitting children'sstatements demonstrated in those cases was correct. Despite the

need for caution, hearsay evidence of the child's statement may be received where the

requirements of the earlier Supreme Court case of Ares v. Venner are met.

Accordingly, the two questions to be asked with respect to whether or not the hearsay statement

of the child should be admissible through the testimony of the mother depends on whether or not

the evidence meets the requirements of necessity and reliability.

Necessity, Madam Justice McLachlin explained, must be interpreted as "reasonably necessary".

While the inadmissibility of the child's evidence might be one basis for a finding of necessity,

other evidence based on psychological assessments that testimony in court might be traumatic

for the child or harm the child might also serve.

2[1970J S.CR. 608

3

With respect to reliability, Madam Justice McLachlin indicated that she did not wish to draw up

a strict list of considerations nor to state that all types of evidence in a certain area (for example,

the evidence of young children on sexual encounters) should always be regarded as reliable. She

suggested that timing, demeanour, the personality of the child, the intelligence and understanding

of the child and the absence of any reason to expect fabrication in the statement may be relevant

on the issue of reliability. These are matters which are best left for the determination of a trial

judge.

While Madam Justice McLachlin noted that the trial judge must have regard to the need to

safeguard the interests of the accused, it would not be appropriate to make a right of cross­

examination a requirement of admissibility. She stated that in most cases the concerns of the

accused" as to credibility will remain to be addressed by submissions regarding the weight to be

accorded to the evidence and submissions as to the quality of any corroborating evidence. She

concluded her judgment by stating that it might not be necessary to introduce the statements

through the mother at the next trial, since the child's evidence should be received.

B R.v. SMITH3

In this case, the principle issue was the admissibility of hearsay evidence as part of the Crown's

case in a murder trial, when the declarant is dead.

At issue were four telephone calls made by the deceased to her mother. The accused had picked

the deceased up at her mother's house in Detroit. They had then driven to Canada and had spent

the weekend together in a hotel. The Crown's theory was that the accused was a drug smuggler

who had travelled to Canada with the deceased in order to obtain cocaine and that he had asked

her to take the cocaine back to the United States concealed in her body, but she had refused.

According to the Crown, he abandoned her at the hotel but later returned and picked her up. He

then drove her to a service station where he strangled her.

3(1992), 15 CR. (4th) 133 (S.C.C.); [1992J 2 S.CR. 915; 75 C.C.C. (3d) 257

4

The mother testified that in the first call her daughter said that the accused had abandoned her

and she wanted a ride home. In the second call, an hour later, she said that the accused had still

not returned. In the third call, another half hour later, she told her mother that the accused had

come back for her and that she would not need a ride home. The fourth telephone call, about

an hour later, was traced to a pay telephone at the service station near which the deceased's body

was found. In that call the daughter said that she was "on her way". The Crown also led

evidence of a phone call, about 20 minutes later, traced to the pay telephone at the service

station, which was made to the accused's residence in Detroit. A witness testified that he saw

the accused near that pay telephone.

On an appeal against conviction, the Court of Appeal held that the third and fourth phone calls

were inadmissible hearsay and ordered a new trial. The Crown appealed the rulings respecting

the first three phone calls. The Supreme Court of Canada dismissed the appeal but confirmed

the admissibility of the first two telephone calls.

First, Chief Justice Lamer, writing for the Court, concluded that the Court of Appeal was correct

in holding that the "present intentions" exception to the hearsay rule at best could operate only

to allow the first two statements into evidence for the purpose of proving that the deceased

wanted to return home. He went on, however, to determine whether there was any other basis

on which the statements should be considered admissible for the truth of the content of the

statement. He then made a number of statements concerning what the Khan decision was

intended to accomplish. At page 145 of the report:

This Court has not taken the position that the hearsay rule precludes the receptionof hearsay evidence unless it falls within established categories of exceptions, suchas "present intentions" or "state of mind". Indeed, in our recent decision in R.v.Khan... we indicated that the categorical approach to exceptions to the hearsay rulehas the potential to undermine, rather than further, the policy of avoiding thefrailties of certain types of evidence which the hearsay rule was originallyfashioned to avoid.

At page 147:

The decision of this court in Khan, therefore, should be understood as the triumph

)5

of a principled analysis over a set of ossified judicially created categories.

He goes on to state at page 148 of the report:

However, Khan should not be understood as turning on its particular facts, but,instead, must be seen as a particular expression of the fundamental principles thatunderlie the hearsay rule and the exceptions to it. What is important, in my view,is the departure signalled by Khan from a view of hearsay characterized by ageneral prohibition on the reception of such evidence, subject to a limited numberof defined categorical exceptions, and a movement towards an approach governedby the principles which underlie the rule and its exceptions alike. The movementtowards a flexible approach was motivated by the realization that, as a generalrule, reliable evidence ought not to be excluded simply because it cannot be testedby cross-examination. The preliminary determination of reliability is to be madeexclusively by the trial judge before the evidence is admitted.

This Court's decision in Khan, therefore, signalled an end to the old categoricalapproach to the admission of hearsay evidence. Hearsay evidence is nowadmissible on a principled basis, the governing principles being the reliability ofthe evidence and its necessity.

Lamer, C.J. stated that reliability is found where the evidence is made under circumstances which

substantially negate the possibility that the declarant was untruthful or mistaken. The companion

criterion of necessity refers to the necessity of the hearsay evidence to prove a fact in issue. It

does not have the meaning of "necessary to the prosecution's case".

Applying these principles to the evidence in the Smith case, the fIrst two telephone conversations

were found to satisfy the criteria of necessity and reliability. It was necessary because the

declarant was dead. Further, there was no reason to doubt the deceased's veracity.

With respect to the third telephone conversation which stated "Larry has come back and I no

longer need a ride", however, Lamer, C.J. found that it was not possible to say positively that

this was reliable because the deceased may have been mistaken or she might have intended to

deceive her mother on that point. Evidence at the trial disclosed that after making the second

telephone call to her mother, the deceased was observed to leave the hotel and get into a taxi that

6

her mother had sent to pick to her up but she was not able to take the taxi because she did not

have a credit card. She was then observed to leave the taxi and proceed immediately to the

phone booth from which she made the third telephone call. It was therefore questionable whether

she had actually seen the respondent's return and it was possible that she was mistaken.

The Chief Justice concluded by stating that the Court's decisions in Ares v. VennerA and R.v.

Khan show that the approach that excludes hearsay evidence, even when highly probative, out

of a fear that the trier of fact will not understand how to deal with such evidence is no longer

appropriate. Hearsay evidence statements made by persons who are not available to give

evidence at trial ought generally to be admissible, where the circumstances under which the

statements were made satisfy the criteria of necessity and reliability and subject to the residual

discretion of the trial judge to exclude the evidence when its probative value is slight and undue

prejudice might result to the accused. Chief Justice Lamer was of the view that juries are

perfectly capable of determining what weight ought to be attached to such evidence and of

drawing reasonable inferences therefrom, when properly cautioned by trial judges.

C. R.v. K.G.B.5

The issue in this case was the substantive admissibility of prior inconsistent statements by a

witness other than an accused. The Supreme Court of Canada was specifically asked to

reconsider the common law rule which limited the use of such statements to impeaching the

credibility of the witness. The court determined that the orthodox rule should be replaced by a

new rule which recognizes the changed means and methods of proof in modem society.

In this case a young offender was charged with murder. The young offender was in the company

4supra, footnote 2

5(1993), 79 C.C.C. (3d) 257 (S.C.C.); [1993J 1 S.CR. 740; (1993), 19 CR. (4th) 1

7

of three other males and became involved in a fight with the deceased and his brother. In the

course of the fight, one of the young offender's group stabbed the deceased.

The three young persons involved with the accused in the incident were interviewed separately

by the police about two weeks later. Each was accompanied by a parent and in one case a

lawyer was present. They were advised of their right to counsel, told they were under no

obligation to answer questions and that they were not charged with any offence "at this time".

The interviews were videotaped.

In their statements, all three told the police that the accused had made statements to them in

which he had acknowledged that he thought he had, or had, caused the death of the deceased by

the use of a knife. However, at trial, after being cross-examined pursuant to s.9 of the Canada

Evidence Act, all three witnesses testified they had made those statements to the police but they

had lied to exculpate themselves. They claimed to have either forgotten what occurred when the

accused was alleged to have made these statements or not to have heard the accused's admission.

The trial judge was of the view that the witnesses were lying in court and had told the truth

earlier. However, applying the orthodox rule the previous statements could only be used to

impeach credibility and not as truth of the contents. Since there was insufficient evidence of

identity, the accused was acquitted.

The Court of Appeal dismissed the appeal stating it was bound by the decisions of the Supreme

Court.

The Supreme Court of Canada ordered a new trial. Chief Justice Lamer wrote the main judgment

with Cory, J. writing a concurring judgment for himself and Madam Justice L'Heureux Dube.

Chief Justice Lamer began by analyzing the history and development of the orthodox rule. He

noted that the hearsay rule had often been expressed as the basis for the orthodox rule, although

this has been subject to debate. However, the analysis of the danger of admitting prior

8

inconsistent statements for their truth was often stated in the same way as the traditional "hearsay

dangers": the absence of an oath or a solemn affirmation when the statement was made, the

inability of the trier of fact to assess the demeanour and therefore the credibility of the declarant

when the statement was made (as well as the trier's inability to ensure that the witness actually

said what is claimed), and the lack of contemporaneous cross-examination by the opponent.

The Chief Justice then proceeded to look at each of these elements as applied to the fact situation

in the present case. First, there has been an erosion of the importance of the oath in modem

society. Further, it has been argued that the lack of opportunity to observe the demeanour of the

witness at the time the statement was made was over-stated since there is an opportunity to

observe the witness on the stand. However, recording the statement on videotape would address

the issues of assessing demeanour and ensuring the accuracy of the statement. The Chief Justice

stated that lack of cross-examination was the most over-stated objection in the context of prior

inconsistent statements. Since the maker of the statement is present in court and amenable to

cross-examination respecting recollection, testimonial capacity and bias at the time of the making

of the prior statement there is little concern about the lack of opportunity to cross-examine at the

time the statement was made.

The Chief Justice noted that in various other jurisdictions including the United States and the

United Kingdom, criticism of the rule had resulted in legislated reversal of the orthodox rule.

In reformed rules, the hearsay dangers were addressed in one combination or another which

supported the characterization of the orthodox rule as an incarnation of the hearsay rule and

presented the court with a variety of alternatives from which to choose.

In discussing the ability and wisdom of the Supreme Court ruling on this issue rather than

leaving it to Parliament, the Chief Justice characterized the change to the orthodox rule as being

an incremental step when viewed within the larger context of the trend in evidence law towards

greater admissibility and a correspondingly increased emphasis on the weight to be accorded

admissible evidence.

)9

The Chief Justice set out various requirements for the new admissibility rule.

First, he determined that prior inconsistent statements will only be admissible if they would have

been admissible as the witness's sole testimony. For example, if the previous statement

contained within itself a hearsay statement, it would not be admissible. In the present case, the

statement was hearsay but admissible under the hearsay exception of an admission.

The Chief Justice then turned to an examination of how one establishes the requirements of

reliability and necessity.

With respect to reliability, the best indicia of reliability would be for the statement to have been

made under oath, solemn affIrmation or solemn declaration and after the witness had been warned

of the possibility of prosecution under sections 137,139 & 140 and the penalties for those

offences. However, the Chief Justice did not want to create technical categorical requirements

which would be similar to the old approach to hearsay evidence so he stated that there may be

situations in which the trial judge could conclude that an appropriate substitute for the oath has

been established.

With respect to assessing the reliability of the statement in order to evaluate credibility, the Chief

Justice stated that a videotape record is another indicium of reliability that would satisfy the

principled basis for the admission of hearsay evidence. However, he noted that it may be possible

that the testimony of an independent third party could, in exceptional circumstances, also provide

the requisite reliability with respect to demeanour evidence. Again, it would be up to the trial

judge to determine whether or not a sufficient substitute for a videotape record had been proved.

With respect to the hearsay danger of the lack of contemporaneous cross-examination, as noted

above the Chief Justice felt that in the case of prior inconsistent statements this is remedied by

the opportunity to cross-examine at trial. It is this which distinguishes prior inconsistent

statements from other forms of hearsay.

10

The Chief Justice had some difficulty with the necessity criterion since the witness is available.

It is the prior statement that is unavailable, unlike the situation in Khan and in Smith. However,

necessity has not always been equated with the unavailability of the declarant as a requirement

of admissibility. The earlier decision in Ares v. Venner was again relied upon. The necessity here

is that there is no other way to obtain the evidence. The recanting witness holds the evidence

"hostage".

Procedurally, the steps outlined by the Chief Justice begin with an application by the party under

s.9 of the Canada Evidence Act. Following this procedure, the party indicates whether it wishes

to use the statement only to impeach the credibility of the witness or whether it wishes to make

substantive use of the statement. If the latter, the trial judge determines whether or not the

indicia of reliability are established on a balance of probabilities.

However, the Chief Justice indicated that even where a warning and oath have been administered

and a statement videotaped or a sufficient substitute established, the trial judge will still have the

discretion to refuse to allow the jury to make substantive use of the statement. In particular, the

statement will be examined in a "voluntariness" context to determine whether or not the

circumstances surrounding the giving of the statement undermine the indicia of reliability.

During the voir dire, the judge does not make a determination on the ultimate reliability and

credibility of the statement. That is a question for the trier of fact.

Once admitted, the jury instruction will be that the jury may take the statement as substantive

evidence of its contents giving the evidence appropriate weight after taking into account all of

the circumstances. The trier of fact must consider carefully the circumstances surrounding the

taking of the statement in assessing the credibility of the prior inconsistent statement as compared

to the witness's testimony at trial.

As the statements in question in this particular case had not been made under oath, solemn

affmnation or on a solemn declaration a new trial was ordered since it might be that sufficient

11

\I substitutes for the oath and warning exist in this case and this should be determined by a trial

judge.

Cory, J. felt the requirements set out by the Chief Justice with respect to videotaping, a

mandatory warning as to criminal liability for falsehood and the administration of the oath were

too restrictive.

With respect to the oath requirement, Cory, 1. fIrst considered the Criminal Code provisions

regarding the taking of statements under oath (s.114 & s.131) and noted that the fact of having

lied under oath in an investigative report to the police would not give rise to those particular

charges. Nor would the offence in s.134 apply since statements made for investigation purposes

were excluded. Accordingly, in his view requiring an oath when no criminal consequences could

be attached to it is an exercise in hollow formalism. Further, he felt that in our society, and as

indicated in the present case, the taking of an oath does not guarantee truth and therefore

requiring an oath should not be a prerequisite to the admissibility of a prior inconsistent

statement. Reliability is the issue and this will depend on a number of factors, one of which

would be whether the witness might be subject to criminal prosecution for an offence, including

perjury, if the statement was false. However, he noted that other offences such as fabricating

evidence (s.137), obstructing justice (s.139(2» or public mischief (s.140) might all be alternative

sources of criminal liability with respect to a false statement. In his view, it would be common

knowledge that prosecution might result from providing false statements to police such that it is

not necessary to give a specifIc warning although it might be preferable.

Similarly, given that the witness will be present in court, subject to cross-examination and to an

assessment with respect to demeanour, Mr. Justice Cory did not see a necessity for a videotape

reproduction of the taking of the statement. He notes that it is preferable for there to be a

videotape as you can clearly assess the accuracy of the previous statement, monitor the conduct

of the police during the interview and assess the demeanour of the witness, but it is not essential.

) Cory, J. agreed that there should be a voir dire to determine the admissibility of the statement

12

frrst under s.9 of the Canada Evidence Act and secondly to detennine that the statement was

freely and voluntarily made. The conditions that he would impose to be determined on a voir

dire are as follows:

(1) That the evidence contained in the prior statement is such that it would be admissible if

given in court.

(2) That the statement has been made voluntarily by the witness and is not the result of any

undue pressure, threats or inducements.

(3) That the statement was made in circumstances which viewed objectively would bring

home to the witness the importance of telling the truth.

(4) That the statement is reliable and that it has been fully and accurately transcribed or

recorded.

(5) That the statement was made in circumstances that the witness would be liable to criminal

prosecution for giving a deliberately false statement

With respect to the standard of proof on the voir dire, Cory, J. disagreed with the Chief Justice

on the question of admissibility being determined on a balance of probabilities. In his view,

admissibility must be established beyond a reasonable doubt. However, the judge conducting the

voir dire should not weigh the credibility of the statement any more than the judge conducting

a voir dire concerning a confession determines whether it is truthful. The instructions to the jury

should be that it is up to them to decide what weight, if any, they should attach to the statement

giving consideration to the fact that the statement was not subject to cross-examination and there

was not the same opportunity to assess the demeanour of the witness as there would have been

had the statement been made in court. It is to be treated like any other admissible evidence such

that it can be accepted in part, rejected in part, rejected completely or accepted completely.

13\lID. THE NEW RULE FOR THE ADMISSffiILITY OF HEARSAY EVIDENCE

The circumstances in both Khan and Smith presented classic examples of the application of the

hearsay rule and the need for an exception to it because of the unavailability of the declarant.

The criterion of necessity was clearly met in that the declarant was either deceased or ruled

incompetent to testify. In the result, the only real issue in both cases was reliability.

In Khan, McLachlin, J. was satisfied that the statement of the child was made under

circumstances that guaranteed its reliability: she had no motive to falsify the statement and it

was not the result of leading questions. In Smith, Lamer, C.J. found some of the statements

admissible on the test of whether the hearsay statement "could not reasonably have been expected

to have changed significantly had [the declarant] been available to give evidence in person and

subject to cross-examination". Some of the statements were found not to be admissible on that

test.

In K.G.B. however, necessity could not be based on the unavailability of the declarant who was

in fact available and testifying under oath. So, in K.G.B. the necessity was found to reside in the

witness's refusal to adopt the earlier statement thus holding the evidence "hostage". Further,

reliability could not be said to be guaranteed. The declarants could easily have had a motive to

lie - the one they gave in court in explanation for disavowing the statements - to exonerate

themselves. So on either the Smith or Khan analysis, there was little to support reliance on the

statements.

Lamer, C.J. in K.G.B. said the criteria had to be "•.adapted and refmed to provide additional

indicia and guarantees of reliability to those outlined in Khan and Smith". Rather than looking

at reliability in the classic sense as was done in Khan and Smith, the "substitute indicia of

trustworthiness" Lamer C.J. outlines are intended more to equate the two statements - the earlier

statement and the testimony at trial - to enable admission of the statement and to permit the trier

of fact to determine what weight will be given to the statement when compared to the testimony

14

of the witness.

One autho~ has argued that the analysis on necessity in K.G.B. is "forced" and that it would

have been better to acknowledge that the categories of reliability and necessity do not fully cover

all the existing exceptions or limit the court in creating further exceptions. The court could have

justified substantive use of a prior inconsistent statement on the basis that the declarant is

available for cross-examination thereby avoiding that classic hearsay danger. This author noted

that some definitions of hearsay refer to evidence of a person who is not testifying and therefore

would not include prior inconsistent statements as hearsay in any event.

In R.v. L(D.oi the Supreme Court held that s.715.1 of the Criminal Code, which pennits

videotaped complaints of sexual abuse by children to be admitted into evidence, is constitutional.

The court stated that the fact the child must adopt the videotaped complaint in court renders it

no longer hearsay. The court also held that it is not a prior consistent statement because it is the

only evidence before the court and not a statement being called to bolster the child's credibility

or to provide superfluous information. On this analysis, the videotaped statement replaces the

child's examination-in-chief. This seems an extremely technical analysis and one would have

thought that the court could easily have found the section to be a constitutional legislated reversal

of the rule against previous consistent statements in certain circumstances, supportable for the

same reasons as stated in the case to hold the section constitutional: because of the special needs

of children and the need for different evidentiary rules to enable the truth to be found.

The new approach to admissible hearsay is defined simply, but without providing much specific

guidance to counsel and the courts. In R.v. Ferri! the court described the new rule as follows

at pages 155-156:

6R.v. B(K.G.) An End to Orthodoxy, (1994),5 S.CLR. (2d) 464

7(1993), 85 C.C.C. (3d) 289 (S.C.C.)

8(1994),27 CR. (4th) 141 (Alta.CA.); aff d [1994] 3 S.CR. 756

15

The new rule allows for the reception of hearsay evidence where it is both reliableand necessary and subject to the residual discretion of the trial judge to excludethe evidence when its probative value is slight and undue prejudice might resultto the accused.

The new rule does not, however, sweep away the existing law concerning the exceptions to the

hearsay rule. This was argued before the Manitoba Court of Appeal in R.v. Duff9 a case which

involved the special rules which apply to the admissibility of hearsay evidence of co-conspirators.

The court held that the existing law was maintained and that the new rule was in addition thereto.

Use of K.G.B. to admit out of court statements is likely to be primarily by the Crown, since it

is the prosecution side which for the most part gathers the evidence and is in a position to do so

in accordance with the rules set out in K.G.B. However, there is nothing on the face of it to

restrict K.G.B. to statements taken by the police and defence counsel would be well advised to

ensure statements of crucial defence witnesses are taken in such a way as to enable substantive

use should the witness later recant the statement. In addition, where any statements have been

taken by the police which are of benefit to the defence but are later denied or recanted by the

witness, the defence will be able to use K.G.B. to attempt to admit the statement. As the review

of cases will demonstrate courts have accepted the Supreme Court's rejection of "ossified rules"

and have applied K.G.B in cases where the various "requirements" set by the Chief Justice have

not been met. He invited this by the language used in the case which clearly left it open for

courts to find "substituted indicia" to those he set out.

Use of hearsay statements pursuant to the Khan and Smith principles by the defence is much

more likely, however, and some instances are noted in the next section which reviews cases

subsequent to the new Supreme Court decisions. Crown and defence counsel alike must be alive

to the possibility of arguing in favour of the admissibility of any statement made by a witness

who is not available to testify at trial. Non-availability does not only mean that the witness is

dead, or is incompetent to testify. Some further examples are found in the cases below and there

9(1994),32 CR. (4th) 153 (Man.CA.)

16

is no doubt there will be various other types of "necessity" situations which will be considered

by the courts in the future.

While the review of cases focuses on criminal cases for the most part, Khan & Smith in particular

have been applied in the civil context. A few cases of this type are found at the end of the

review. Although many cases won't be reviewed, there has been a great deal of activity in the

child protection area.

IV. REVIEW OF SUBSEQUENT DECISIONS

A. APPLICATION/REJECTION OF KHAN & SMITH

1. Cases where the declarant is deceased

In R.v. Chahley10 the British Columbia Court of Appeal held that a statement of the deceased to

his common-law wife three to four days before his death that a person other than the accused had

pulled a knife on him should have been admitted as argued by the defence. It should have been

admitted, the Court held, not for its truth, but as original evidence as to the deceased's state of

mind. However, it should have also been admitted for its truth on a Khan analysis, because it

was necessary and reliable and logically probative to a fact in issue.

In R.v. Fintall a war crimes case, a statement made in 1947 to police, after being told of the

obligation to tell the truth and the possibility of later having to give evidence under oath, and

evidence given during an ex parte trial before a tribunal was admitted. Since the declarant was

dead the evidence was necessary. It was reliable because made on a solemn occasion, akin to

10(1992), 72 C.C.C. (3d) 193 (B.C.CA.)

1l[1994] 1 S.C.R. 701 at page 852

17,/ court proceedings. The court also noted with approval a statement in an Ontario Court of Appeal

decision where the court said there is a need for a flexible application of the rules of evidence

in order to prevent a miscarriage of justice.

In R.v. Miller12 the Ontario Court of Appeal confirmed the flexible approach advocated in their

earlier decision. The Crown sought to introduce statements made by the deceased in a telephone

call to show the deceased did not intend to commit suicide. In the same call the deceased made

statements the defence wanted to introduce to show the deceased had been alive when the

accused left her apartment. The court held both statements should be admitted. It noted the

flexible approach for the admission of hearsay evidence set out in Khan and states at page 364

of the report:

In balancing the interests of a fair trial for both the Crown and the accused, itseems inappropriate to admit evidence of hearsay utterances by the deceasedwhich were of assistance to the Crown in showing the deceased's state of mind,but to reject evidence of utterances made in the same telephone conversationwhich could be of assistance to the accused.

In R.v. Kharsekinl3 the court ordered a new trial on a Crown appeal on the basis that statements

of the deceased after he had been stabbed should have been admitted. In the statement he had

identified the accused as responsible for the stab wound. The court found the statement did not

fall within the dying declaration exception nor was it part of the res gestae. However, on the

basis of Khan and Smith the statements should have been admitted as they were necessary, in that

the declarant was dead and there was no other source of the information, and reliable since made

under circumstances where there appeared to be no reason to falsify the information.

Reliability was the focus of the court's attention in R.v. CassidY4 Here the statements were of

the murder victim to the effect that the accused had used her credit card without permission and

12(1991) 9 C.R. (4th) 347 (Ont.CA.)

13(1994), 88 C.C.C. (3d) 193 (Njld.CA.)

14(1993),26 CR. (4th) 252 (Ont.Gen.Div.)

18

that she had demanded her money back and threatened to go to the police. In addition, she had

made statements that the accused had threatened her. The court interpreted Smith as requiring

reliability to be found in circumstances that will provide equivalence to the reliability normally

ensured by cross-examination. Cross-examination traditionally tests accuracy of perception,

reliability of memory and honesty. In Smith, Lamer engaged in speculation concerning the last

two phone calls and whether the declarant might have been mistaken or intending to deceive her

mother. The court states as follows at page 254 of the report:

I understand that to mean that before letting in hearsay evidence the trial judge isrequired to conduct a search for hypotheses that could explain the evidence in afashion inconsistent with reliability. The search must extend to the point ofspeculation. Only if that search fails can it be said that the evidence meets thetest of substantial equivalence to the reliability afforded by cross-examination; oras in the excerpt from Wigmore quoted by the Chief Justice at p.145 , wherecross-examination "would be a work of supererogation".

In this particular case, as the accused had been involved in a tumultuous emotional relationship

with the deceased for some time the court felt that it was not unlikely that the victim's objective

judgment could have been clouded or her statements made to her friends or family about the

accused might have been exaggerated, immoderate or otherwise unreliable. Without cross­

examination defence counsel would be powerless to deal effectively with those statements.

Accordingly, the criteria of reliability was found not to have been met.

2. Child Witness Cases

As noted earlier, the Supreme Court applied the new hearsay rules when addressing the

constitutionality of s.715.1 of the Criminal Code in R.v. L.(D.a.).1s The court found the

necessity criteria in the possible loss of memory by the time of trial or from the negative

consequences that the child may suffer if obliged to testify at trial. It's interesting that a great

deal of reliance was placed on the fact that child is available for cross-examination and must

adopt the contents of the videotape. As mentioned earlier, the court states this renders the

J5supra, footnote 7

'.

19

statement no longer hearsay. However, if the child no longer recalls the incident and adoption

is accepted as being established by the child saying "I told the truth then", cross-examination

would appear to be a hollow right. This particular issue was not dealt with by the court, but it

seems to anticipate that the child may not be able to give as complete an account as is given in

the statement, since that is one of the bases stated for why the procedure is required.

The next step, of permitting the earlier statement, or evidence, to be admitted when the witness

no longer recalls the incident was taken by the Ontario Court of Appeal in the Khan case

regarding the disciplinary hearing. 16 At this hearing, although the child was permitted to testify,

she no longer recalled the details of the incident, or the statement she made to her mother. The

Ontario Court of Appeal held the mother could testify about the statement on the basis that it was

"reasonably necessary" in light of the child's inability to recall the events. As McLachlin, J. said

in Khan, the requirement of necessity will probably mean that in most cases children will still

be called to give their viva voce evidence, but there are some cases where it will be necessary

even if the witness is present to testify.

Similarly, the British Columbia Court of Appeal in R.v. Hanna17 admitted a child's evidence

from a first trial where the child no longer recalled much of his earlier evidence. It had been

introduced by agreement of counsel on the basis that it fell into the past recollection recorded

exception. The court held that the evidence at the first trial did not fall within that exception,

but was admissible in any event under the new rule set out in Khan and Smith. No mention is

made in this case of the decision in K.G.B.

Necessity was again found in a case where the child testified but could not testify fully and in

/6Khan v. College ofPhysicians & Surgeons ofOntario (1992), 76 C.C.C. (3d) 10 (Ont.CA.)

17(1993), 80 C.C.C. (3d) 289 (R.C.CA.)

20

detail of the events in question in R.v. H.(J.A.).18 The court stated at pages 277-278:

The exclusionary rule pertaining to hearsay evidence has undergone remarkablechange since the arrival in the courts of so many cases dealing with the sexualabuse of young children. The difficulties with these types of cases has prompteda re-evaluation of the rule of evidence and has led to a softening of the hearsayexclusionary rule to permit a trial judge a discretion to admit hearsay evidence ifit is necessary and reliable. The purpose was to bring forward evidence that wasreliable and helpful in the search for truth and justice.

Citing the Ontario Court of Appeal decision in Khan the court noted that necessity is established

if it is reasonable necessary to admit the out of court statement in order to obtain an accurate and

frank rendition of the child's version of the relevant events. The court noted that in Smith the

Supreme Court of Canada adopted the statement from Wigmore that necessity will also be met

if it cannot be expected to get evidence of the same value of the out of court statement from any

other source or again.

The Ontario Court of Appeal in R.v. A(S;J9 sounded a note of caution with respect to statements

admitted pursuant to Khan. The Crown had invited the court to set out some guidelines on this

despite the fact that the appeal was being allowed on other grounds. While the court held that

statements of the five year old complainant (who was three at the time of the alleged sexual

assaults and when she made the statements) were admissible as substantive evidence, it set out

a number of directions the judge should give to a jury about how to deal with the hearsay

statements.

The court noted three concerns. First, the reliability of the evidence of the witness who is called

on to testify about the making of the statement Second, the absence of traditional means of

testing the reliability of the statement itself. Third, the features in the rest of the evidence which

might have a bearing on the reliability of the statement.

18(1993), 27 CR. (4th) 274 (Ont.GenDiv.)

19(1992), 17 CR. (4th) 233 (Ont.CA.)

)21

Accordingly, the jury should be told they must first determine if the statement was made and if

it was, the content of the statement. Bias or mistake on the part of the testifying witness may

apply to this issue. The jury should be told of the shortcomings of the out of court statement due

to the absence of an oath, the lack of opportunity to observe the person making the statement and

lack of cross-examination. The other factors relevant to reliability are set out at page 240:

Other factors present in this case which may have affected the jury's assessmentof the reliability of the statement included the age and immaturity of the child, thelanguage used in the statement, the relative spontaneity of the statement, thepassage of time between the statement and the alleged assault, and the absence ofany details in the statement referable to the time, place or circumstances in whichthe assault occurred. Depending on the view of the evidence taken by the jury,each of these factors might enhance or detract from the reliability of the child'sstatement.

In R.v. p(Jfo the complainant was just over two years old at the time of the offence and 3 3/4

at the time of trial. No evidence other than her age was tendered to support the submission that

she could not testify. The majority held nothing further was required to establish the necessity

of permitting the hearsay evidence of the complainant's mother. Reliability was found to have

been established by the fact of the statement having been made by the complainant that her father

had licked her vagina when one would not expect her to have knowledge of this type of an event.

In R.v. Aguilar1 a new trial was ordered on the ground that hearsay statements of the

complainant to her mother should not have been admitted. The complainant was eight at the time

of the offence and ten at trial. The complainant gave evidence only that the accused had kissed

her on the mouth. The complainant's mother also said the child made a statement that he had

kissed her vagina. The court held there was not sufficient evidence called to establish that it was

reasonably necessary to admit the hearsay statement through the mother.

2°(1992), 74 C.C.C. (3d) 276 (Que.CA.)

21(1992), 77 C.C.C. (3d) 462 (Ont.CA.)

22

IIi R.v. D(GN.l2 the complainant, who was three years old at the time of the offence, displayed

unusual behaviour which led her caregiver to question her. She made statements to the caregiver

and as well to the police, a social worker and her mother. The child was found not to be

competent to give evidence and the statements were all held to be admissible. The court noted

that the fact the child can't testify alone does not of itself justify the reception of every statement

made by the child, but they may be reasonably necessary to provide an accurate and full account

of what happened. Also, if a statement is not itself necessary if it is the same as another and

therefore repetitive, it may still be admitted if the defence position is that the questioning has

tainted later statements.

In a recent Saskatchewan case, R.v. L.W}3 statements of a complainant, who was three years old

at the time of trial, to her mother were admitted pursuant to Khan. The child was described as

an articulate and alert child who had been seeing a psychologist for treatment following an

alleged sexual assault which involved objects being forced into her vagina. The psychologist

gave evidence that she had broached the subject of testifying with the complainant and the more

they talked about it the more adamant the complainant became that she wasn't testifying. The

complainant's mother got the same result and observed the child to be more adamant the closer

they got to the trial date. The mother also noticed that as the date got closer for trial the child's

behaviour regressed to what it had been immediately after the assault. The psychologist said that

testifying would be hard on the complainant and would probably set back her treatment. On this

basis, the child was never called to testify and the statements made to the mother were admitted

into evidence. The conviction appeal was dismissed by the Court of Appeal with written reasons

to follow.

In R.v. CollirziZ4 the Ontario Court of Appeal ordered a new trial where a child's mother was

22(1993),81 e.C.C. (3d) 65 (Ont.CA.) (applicationfor leave to appeal filed May 28,1993)

23April13, 1995 (Sask.CA.)

24(1991), 9 CR. (4th) 377 (Ont.CA.)

)23

allowed to repeat a statement made to her despite the fact the child testified at the trial. The trial

judge applied Khan when there was no necessity because the child had testified.

3. Statements of Co-accused

In R.v. C(Bi5 the accused were jointly charged with sexual assault. K.G. had given a statement

to police which implicated himself and B.C. in the offence. The trial judge relied on the

statement in convicting both accused despite the fact that K.G. recanted the evidence at trial. The

Court of Appeal ordered a new trial for B.C. on the basis that the statement should not have been

admitted for the truth of the contents as against him. It was not necessary because the Crown

could have split the two accused and called K.G. against B.C. It was not reliable because made

by a co-accused and therefore there should have been cross-examination available to test it.

Further, the requirements of K.G.B. had not been met.

A similar attempt but by the defence to use a statement of a co-accused that exonerated the

accused also failed in R.v. Unger.26 Counsel for Houlahan argued that statements made by

Unger in which he claimed to have acted alone in the murder should have been admissible as

evidence for him on the basis of Khan, Smith & K.G.B. At trial Unger testified he lied in the

statements he made to police during an undercover operation.

The Court noted that there was no circumstantial guarantee of reliability of Unger's earlier

statements because he stated at trial that those were lies. No reference is made to the fact that

this was also exactly what happened in K.G.B. In addition, however, Unger's statement that he

acted alone was in conflict with Houlahan's position that he assisted Unger in the murder and

afterwards under duress.

25(1993),80 C.C.C. (3d) 467 (Ont.CA.)

2683 C.C.C. (3d) 228 (Man.CA.) (notice of leave to appeal filed)

24

4. Miscellaneous

In Giesbrecht v. The Queen27, defence argued that the trial judge's direction to the jury that

statements made by the accused to psychiatrists were hearsay and could not be relied upon for

truth of the facts was wrong in light of the new rule. The instruction was held to be correct.

The statements were of the accused's past state of mind and did not meet the criteria in Smith

and Khan.

In R.v. Luke8 the defence sought to introduce statements of a Crown witness who testified at

trial that the accused entered the store where the deceased was working and ran out of the store

after a gunshot was heard. He had stated to various other persons to the effect that he had killed

the deceased. Counsel did not seek to rely on K.GB. as clearly none of the procedural

requirements set out in that case had been met. Instead, counsel argued that as one of the

admissions of the accused was made to the same witness who allegedly received the statement

from the Crown witness, both statements should be admitted. The court assessed whether there

were indicia of reliability with respect to the unadopted prior inconsistent statement and found

there were none so the statements were not admissible for the truth of the contents but only as

going to the credibility of the witness.

Here the reliability inquiry was focused primarily on the unsavoury character of the persons to

whom the statements were allegedly made although the court did note that in some cases the

statements were not believed by the recipients and that they could have been bragging on the part

of the witness who was known for this trait. In R.v. Chahley9 the court stated that it is not the

reliability of the witness testifying that is in question because that witness can be cross-examined.

It is the reliability of the statement made by the declarant which is at issue, at least in a Khan

27(1994), 91 C.C.C. (3d) 230 (S.C.C.)

28(1993), 85 e.e.C. (3d) 163 (Ont.CA.)

29supra, footnote 10

)25

scenario. These two propositions can be reconciled on the basis that reliability of the original

declarant is required for the inquiry pursuant to the Khan decision but there must also be a

finding that the statement was in fact made and is being conveyed accurately.

In R.v. Edwards3° the court found telephone calls on the accused's seized cellular phone which

requested cocaine from the accused to be admissible as evidence of the business the accused

carried on and not hearsay. The issue was not whether the callers really wanted drugs but the

fact that the calls were made. However, the court stated that even if the calls were hearsay it

would be appropriate to admit them because they were necessary and reliable. They were

necessary to show the nature of the accused's drug activities since there were no other ways for

the' police to obtain the evidence because they could not identify the callers. The calls were

reliable because under the circumstances there was no reason to think that the calls were spurious

rather than genuine since the callers believed themselves to be speaking to the accused.

In R.v. Johnson31 the court accepted, pursuant to Khan and Smith, the hearsay evidence of a

witness as to her age, often a vexing problem for the Crown when age is an essential ingredient

of the offence.

B. APPLICATION OF K.G.B.

In a Saskatchewan case, R.v. Bigeagle32 the Saskatchewan Queen's Bench ruled the previous

evidence of the Crown witness which was audiotaped could be admitted as substantive evidence

pursuant to K.G.B. when the witness refused to testify at trial. The Crown called a judicial

officer present during the hearing to give evidence of the witness's demeanour while giving

evidence. Although the witness was not warned about the sanctions that could follow if she lied

3°(1994), 91 C.C.C. (3d) 123 (Ont.CA.); appeal set for hearing June 1, 1995

31(1993), 80 C.C.C. (3d) 199 (N.S.CA.)

32(1994), 121 Sask.R. 154 (Sask.Q.B.)

26

during her statement, the evidence had been given under oath and in a courtroom so the absence

of a warning did not result in a finding that the statement was unreliable. The witness's earlier

statement to police and the evidence given were similar and in addition, the judge found the

statements and evidence to have been given voluntarily. An appeal against conviction is pending

in the Court of Appeal.

In another Saskatchewan case a videotaped confession by one participant in the crime was

admitted as substantive evidence against two accomplices at their trial when the witness refused

to give evidence. Also, on an application by the defence, that witness's previous evidence was

admitted pursuant to K.G.B. Again, the issue will be before the Court of Appeal in due

course.33

While there is a statutory provision enabling the use of preliminary hearing evidence where a

witness refuses to testify (s.715), K.G.B. has been used where the witness does testify but denies

the evidence previously given. 34

The case of R.v. Letourneazl5 provides a good example of the flexibility the courts will apply

to the requirements set out in K.G.B. This case involved the murder of one person and the

attempted murder of another who was a co-worker of the deceased. The accused, deceased and

attempted murder victim all had lengthy criminal records. Shortly after the shooting the

attempted murder victim gave a statement to police describing the two assailants as small,

slightly built men and pointed out one of the accused from a photo lineup. However, at the

preliminary hearing and trial he testified the assailants were large heavy men and said he did not

identify the accused as his assailant but simply said the hair and mustache of the person in the

photo he pointed out were similar to the person who shot him.

33Edward Cote & Ricky Tourangeau, Oct. 3, 1994 (Sask.Q.B.)

34R.v. Richard Clarke, Dec. 21,1994 (Ont.CA.) (application for leave to appeal filed Feb.17,1995

35(1994), 87 C.C.C. (3d) 481 (B.C.CA.)

27

The trial judge told the jury they could use the prior inconsistent statements to determine whether

the witness had picked the accused out of the lineup or merely indicated him as a person with

similar facial hair. The Court of Appeal noted there had been no warning about a possible

prosecution for perjury, there was no videotape of the interview and no voir dire had been held.

However, the court nevertheless found the criteria of necessity and reliability had been met. This

was based on the fact the earlier statement had been made before there was any opportunity to

speak to friends of the deceased or of the accused, and there was some evidence friends of the

accused had spoken to the witness about changing his testimony. He had signed the statement

and initialed each page and was cross-examined at the preliminary hearing and trial. The court

held there was no need to give him a warning because of the circumstances.

The court noted a distinguishing factor in K.G.B. was that there the witnesses were friends of the

principle suspect and probably suspects themselves whereas here the witness was a victim.

Further, the original statement was given soon after the incident and before there was time to

concoct a story, unlike the facts in K.G.B. While there was no voir dire, this was not raised as

an important point in the factum and the court concluded that had there been a voir dire the

evidence would have been admitted, therefore there was no miscarriage of justice.

In R.v. Levassur6 the court held K.G.B. could not apply to permit use of a witness's prior

statements to police in which he did not implicate the accused to contradict a later statement and

evidence at trial wherein he did implicate the accused. The court held none of the requirements

in K.G.B. were met and the trial judge was correct when he told the jury they could only use the

statements with respect to the credibility of the witness.

c. CIVIL CASES

In a civil case concerning a claim for insurance by the owner of a vehicle where an unlicensed

hitchhiker had totalled the vehicle, the Saskatchewan Queen's Bench refused to allow a statement

36(1994), 89 C.C.C. (3d) 508 (Que.CA.) (rev'd on other grounds) [1994J 3 S.CR. 518

28

of the hitchhiker, who could not be found, to the effect that the driver had given her pennission

to drive. It was not necessary since there was another hitchhiker who might be available to

testify. No evidence was provided concerning attempts to find this other person. Also, the

statement was not reliable because the hitchhiker had a clear interest in lying to avoid criminal

and civil liability. 37

In Ethier v. Canada (R.C.M.P. Commissioner;J8 the court relied on Smith & Khan to permit

hearsay evidence contained in the Appellant's affidavit, which consisted of information the

Appellant had received under an access to information request. The information had been

prepared by one of the Respondents. As the Respondents had resisted all requests for disclosure

the' court held it was necessary since the only other recourse would be to seek out the declarants

and get affidavits from them which could be a breach of professional ethics. It was reliable

because there was nothing to suggest any declarant would have said anything untrue.

In N.B. (Minister ofHealth and Community Services) v. E.JL., VL. & MA.C.39 the court had no

difficulty in admitting statements to a foster parent and social worker by a child who was not

called to testify.

In Wepruk v. McMillan Estate40 the relationship between the deceased and a woman was a

crucial issue. In an earlier proceeding the deceased had stated to the Registrar that he and the

woman were living together as man and wife. The court held the statement made by the

deceased to the Registrar was admissible pursuant to Khan, Smith & K.G.B. The evidence was

necessary because the declarant was deceased. The court was also satisfied that the evidence

withstood the test of reliability since it was an admission against interest made under oath in

37Schaeffer v. S.GJ. (1993), 115 SaskR. 127 (Sask.Q.B.)

38[1993J2 F.C. 659 (Fed.CA.)

39(1993), 132 N.BR. (2d) 331 (N.B.Q.BFamDiv.)

40(1993),26 B.CA.C. 127 (B.C.CA.)

)29

circumstances where the deceased was subject to cross-examination.

Finally, in Birch v. Southam Inc.41 a novel argument was made by counsel that hearsay evidence

was reasonably necessary because they did not want to call the declarant, who was one of their

client's most significant advertisers, because they did not want to inconvenience him by calling

him to testify. The court stated that while there might be circumstances where hearsay evidence

could be admitted out of "economic" or "business" necessity, this was not such a case and the

hearsay evidence could not be given.

41(1993), 139 A.R. 48 (Alta.Q.B.)