HEARSAY OBJECTIONS AND THE VOIR DIRE*
By James Morton
May 2009
Hearsay is the most common evidentiary exclusion seen in provincial prosecutions. Despite the frequency with which the issue arises the rule concerning hearsay and exclusion of evidence is widely misunderstood. Properly understood hearsay ought to pose little difficulty for the prepared prosecutor and the application of the rule, whether or not a voir dire is necessary, should be straightforward.
This paper explores the hearsay rule, the exception is most likely to be seen in provincial prosecutions, and the voir dire process.
Hearsay
In order to understand why hearsay evidence is normally inadmissible, consider the children’s game of broken telephone. In that game, a phrase or sentence given to one child which is then verbally passed from child to child, one to another, numerous times. The fun of the game is to see how garbled the statement gets by the last transmission. Each time the statement is repeated a small error creeps in until its sense and meaning becomes totally changed. It is this “broken telephone” problem that the rule against hearsay evidence is meant to address.
Before going into more detail about why hearsay is usually excluded, a definition is helpful.
Hearsay evidence is (1) any out of court assertion; (2) repeated in Court; (3) to prove the truth of that assertion. The classic formulation of hearsay is in Subramanian v. Public Prosecutor
[1] where Court holds:
Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact it was made.
Similarly, the Supreme Court of Canada has ruled the defining features of hearsay are
[2]:
The essential defining features of hearsay are therefore the following: (1) the fact that the statement is adduced to prove the truth of its contents and (2) the absence of a contemporaneous opportunity to cross-examine the declarant.
Why is hearsay evidence problematic? First, cross-examination is effectively impossible. No amount of cross-examination will establish anything since the witness knows nothing of the substantive facts but only the statement made. Second, the knowledgeable witness is not testifying; all we know is the witness heard something someone else said. That other person is the one whose veracity is to be accepted or rejected. But that person is not, and never was, under oath or even aware their statement might be relied on. The person whose statement is being repeated could be joking, speculating, making a wish or flat out lying and the trier of fact cannot put their statement into context to examine what they meant. Moreover, the witness in court may have misunderstood what they heard. Perhaps, as in “broken telephone”, the witness made a slight mistake when they heard the out of court statement the first time and another mistake in the repeating of the statement.
As Justice Campbell notes in CAS v SK
[3], hearsay evidence is generally inadmissible “as a result of its unreliable nature and the inability to cross-examine the declarant …”. Perhaps the out of court statement was absolutely true, but the witness did not properly repeat it. For all these reasons, hearsay evidence is, subject to many exceptions, generally rejected.
Hearsay Defined By Purpose
The classic description of hearsay is worth repeating, and comes from the decision of Privy Council in Subramanian v Public Prosecutor
[4] where the Court held:
Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed or established by the evidence, not the truth of the statement, but the fact it was made.
Professor McCormick defined hearsay as follows:
[5]Hearsay evidence is testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court assertion.
Similarly, in Starr
[6], Mr. Justice Iacobucci, cites Cross on Evidence
[7], stating hearsay is:
An assertion made other than one by a person giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted.
The Supreme Court of Canada has been careful not to overdefine hearsay
[8]; that said, in general the court’s definitions are uncontroversial and follow the traditional view of hearsay being (a) an out of court assertion; (b) repeated in court; (c) to prove the truth of that assertion.
[9] Such a blackletter definition, standing alone, is unhelpful; rules are, or should be, reified reasons and the function of any rule is a necessary element of its definition
[10].
An appropriate definition of hearsay must combine the traditional elements of hearsay
[11] with a recognition of the functional issues the rule is designed to address. The hearsay dangers must inform that definition of the exclusionary rule. Considering these dangers, hearsay may be considered to be any intentional assertion made outside of a judicial hearing repeated in that hearing for the truth of the contents of the assertion. Intentional assertions carry with them the risk of acceptance without the support of cross-examination or the ability to consider the demeanour and affect of the person making the assertion; these assertions must be caught as hearsay if the rule is to deal with the dangers it is designed to address. Our definition captures the function of hearsay and bars, in general, of out-of-court assertions repeated for their truth value.
[12]Because only assertions made to communicate facts can amount to hearsay statement made for other reasons cannot be hearsay. Thus, the language of a contract is not assertive - - the statements in a contract are neither true nor false - - and proof of a contract in a breach of contract case does not trigger the hearsay rule. Similarly, command statements (e.g. “open the door”) are neither true nor false and proof such statements were made does not trigger hearsay.
Hearsay Implied by Assertive Conduct
The implementation of our hearsay definition can be seen in the issue of conduct that implies an assertion. Does such conduct create a hearsay problem? The answer is no, because the conduct does not make an assertion. The command statement “open the door” presupposes a door exists, but is not an assertion of a fact about the door.
Consider a letter written to a deceased whose legal competence is doubted. The letter is written in language suggesting the recipient is a sensible and of reasonable intelligence.
[13] Is the letter a hearsay assertion of competence? Clearly, if the letter stated expressly “X [the deceased] is competent” it would be hearsay, but here the competence of the deceased is merely implied. If the concern in hearsay is the trier of fact, the implied assertion is just as problematic as express hearsay. An easily misled jury will be, if anything, even more easily misled by implied assertions than by express assertions. But if the concern with hearsay is the witness only the implied assertion poses no problem. The trier of fact is not viewing the ultimate fact through the mediation of a witness without actual knowledge; the trier gets the facts and decides what, if anything, to imply from them. Since the declarant is not aware they are making a declaration there is a substantial indication of truthfulness.
[14] Speaking in Smith
[15] Chief Justice Lamer notes:
If a statement sought to be adduced by way of hearsay evidence is made under circumstances that substantially negate the possibility that the declarant was untruthful or mistaken, the hearsay evidence may be said to be ‘reliable’....
The implied assertions of out-of-court declarants do not raise the issue of a duplicitous or deceived witness and so hearsay and its attendant dangers are not present.
Canadian courts, consistent with the assertion based definition of hearsay, treat implied assertions or assertive conduct as not being hearsay.
[16] Thus, in R v McKinnon
[17]a body was located by police in a remote area. The police were accompanied by the accused’s spouse. The accused objected to the evidence of the spouse accompanying the police saying this implied the location was given to the police by the spouse who received the information from the accused.
Rejecting this argument Justice Finlayson notes:
[18]In the first place, her presence was a fact, and was part of the police officers’ testimony as to the search and discovery, which search and discovery surely was a relevant fact in the light of the Crown’s theory of the “plan” to kill and hide the body. In the second place, her presence in the manner described cannot be characterized as hearsay by conduct. It has always been my understanding that such hearsay usually amounted to a description of actions or behaviour which are themselves means of expression, such as shrugs, headshakes, or other gestures that are a substitute for or supplement to oral communication. Evidence of such conduct is tendered as evidence of an assertion by the person who performed the action. As such, it is inadmissible hearsay. On the facts of this appeal I see nothing in the evidence about the wife’s accompanying the police officers to the gravesite which amounts to an assertion or a statement that she received information about its location from her husband, from her husband alone, and from no other source. The evidence is not tendered as evidence of an assertion by the wife. It is not hearsay.
Implied assertions are not hearsay; the concern with deceived witnesses is not present.
[19] The distinction between explicit assertions, which give rise to hearsay issues, and mere conduct, which does not, shows that implied assertions are not subject to hearsay concerns
[20]. Consider a case where a party behaves in an unusual fashion – that behaviour can be powerful circumstantial evidence. The behaviour may be forced, or intentionally deceptive, but it is not hearsay as it is non-assertive.
[21]Exceptions to the Hearsay Rule
Starting with the decision in R. v Khan
[22] and continuing through to Starr
[23], the Supreme Court has adopted what it calls a principled approach to hearsay evidence and exceptions to the general exclusionary rule. Under the principled approach, evidence may be admitted, though hearsay, if it is necessity and reliable.
[24] The principled approach recognises that the dangers hearsay evidence attracts are not always present and, in specific cases, hearsay evidence is just as good a basis for judicial decisionmaking as sworn and cross-examined testimony.
Broadly speaking, and prior to the Khan case, the analysis of hearsay in Canadian courts was relatively mechanical. A determination would be made as to whether or not evidence was hearsay and, if it was, a further consideration would be made as to whether the evidence is admissible, though hearsay, pursuant to a specific previously existing exception to the general exclusionary rule. These exceptions are numerous and do not always fall within the obvious ambit of the principles of necessity and reliability.
For example, in the Pelletier
[25] decision, the defendant sought to adduce a statement made to police by a witness who had disappeared. The Court initially considered whether or not the statement was hearsay and then considered at some length whether or not the statement, having been found as hearsay, fell within the scope of a pre-existing exemption to the hearsay rule.
[26]The analysis, in this older case law, turned entirely on the mechanical determination of whether or not evidence fell within the scope of the exclusionary rule and, if it did, whether some exemption to that exclusionary rule applied. Whether the evidence was, regardless of the existence of the specific exemption, necessary or reliable, did not enter into the analysis at all; the question was not one of principle but rather the fulfilment of each condition precedent to the application of the specific exemption. As Justice Buller suggested in Eriswell:
[27]The true line for the courts to adhere to is, that, wherever evidence not on oath has been repeatedly received, and sanctioned by judicial determination, it shall be allowed; but beyond that, the rule, that no evidence shall be admitted, but what is upon oath, shall be observed.
The old approach followed precedent alone – the function of cross-examination or probative value of the hearsay itself was not considered.
The decision in Khan
[28] began a change in this approach. Specifically, following Khan, evidence which would otherwise be inadmissible as hearsay, could be admitted even if it did not fall within any previously existing hearsay exception provided only the evidence was necessary and reliable. Writing in Khan, Justice McLachin, as she then was, noted:
The first question should be whether reception of the hearsay statement is necessary. Necessity for these purposes must be interpreted as “reasonably necessary”. The next question should be whether the evidence is reliable.
[29]Similarly, in Finta
[30] Justice Cory noted:
[31]... in recent years courts have adopted a more flexible approach to the hearsay rule, routed in the principles and policies underlying the hearsay rule, rather than in the narrow strictures of the traditional exceptions. The requirements for the admission of hearsay evidence are that it be necessary and reliable.
The hearsay exclusionary rule has always been subject to exceptions and the modern principled approach has a solid historical basis. Thus, in 1836 Baron Parke held:
[32]The general rule is, that hearsay evidence is not admissible as proof of a fact which has been stated by a third person. This rule has been long established as a fundamental principle of the law of evidence; but certain exceptions have also been recognized, some from very early times, upon the group of necessity or convenience.
The concept that the exceptions to the hearsay exclusionary rule are based on unifying principles has been a theme of Canadian jurisprudence for some time. Thus, in 1922 Justice Stuart, writing in a concurring, albeit minority, judgment for the Alberta Court of Appeal, noted:
[33]... the records were ... admissible in evidence as proof of the facts stated therein. There is first the necessity principle. ... Then there is the circumstantial guarantee of trustworthiness....
Justice Stuart’s twin bases (necessity and trustworthiness) for a proper exception to the hearsay exclusionary rule, were picked up by the Supreme Court of Canada in Ares v Venner
[34]. Although Ares was largely taken as a mere clarification of the business records exception to the hearsay rule, the case explicitly held that the rule is subject to judicial modification to ensure the hearsay rule assists ascertaining facts.
[35]Despite the invitation of the Supreme Court of Canada in Ares to view hearsay in a principled, as opposed to formal, fashion, little change in the mechanical application of the exclusionary rule occurred until Khan.
[36] Justice McLachlin, in Khan, discussing the principled, and formal, approach to the hearsay rule commented:
[37]The hearsay rule has traditionally been regarded as an absolute rule, subject to various categories of exception, such as admission, dying declarations, declarations against interest and spontaneous declarations. While this approach has provided a degree of certainty to the law on hearsay, it has frequently proved unduly inflexible in dealing with new situations and new needs in the law. This has resulted in courts in recent years on occasion adopting a more flexible approach, rooted in the principle and the policy underlying the hearsay rule rather than the strictures of traditional exceptions.
So as to make clear that Khan signalled a new approach to hearsay, the Supreme Court in Smith
[38] explicitly says the principles underlying the rule and its exceptions are necessity and reliability.
[39] Having said this, the Court continues
[40] “... Khan, therefore, should be understood as the triumph of a principled analysis over a set of ossified judicially created categories”. The caselaw following Smith, up to and including Starr expands on this principled approach.
[41]Interaction of Exceptions to Hearsay Rule and Principled Approach
A difficulty that has arisen from the determination that hearsay exceptions should be dealt with in the principled approach arises from the impact of the exceptions to the exclusionary rule. Are the exceptions to the exclusionary rule to be followed, as traditionally done, and then the principled approach applied only if no previously existing exception applies?
[42] If this is the approach to be taken, the principled approach expands the scope of admissible evidence but does not restrict the admission of hearsay evidence to that which is necessary and reliable – it is possible that evidence which is not necessary or reliable might fall within an exception to the hearsay rule but still be admissible.
[43]The Supreme Court in Khelowan
[44] , while clarifying the application of necessity and reliability as the basis for admitting some hearsay, made it clear that, broadly speaking, hearsay remains inadmissible and the traditional exceptions have continued importance:
Once the proposed evidence is identified as hearsay, it is presumptively inadmissible. I stress the nature of the hearsay rule as a general exclusionary rule because the increased flexibility introduced in the Canadian law of evidence in the past few decades has sometimes tended to blur the distinction between admissibility and weight. Modifications have been made to a number of rules, including the rule against hearsay, to bring them up to date and to ensure that they facilitate rather than impede the goals of truth seeking, judicial efficiency and fairness in the adversarial process. However, the traditional rules of evidence reflect considerable wisdom and judicial experience. The modern approach has built upon their underlying rationale, not discarded it. In Starr itself, where this Court recognized the primacy of the principled approach to hearsay exceptions, the presumptive exclusion of hearsay evidence was reaffirmed in strong terms.
The Courts see that eliminating the traditional exceptions and holding that hearsay is generally inadmissible save when some overall test of necessity and reliability has been met would lead to greatly expanded inquiry at trial, lengthening of trials and considerable unpredictability in the trial process. As Madame Justice L’Hereux-Dubé points out in her dissent in Starr
[45] changes by which the existing hearsay exceptions are subject to review under the twin guides of necessity and liability can lead to “major and far reaching” effects on the trial process and will lead to “uncertainty in the law” Her Ladyship continues
[46] and notes that such “analysis mandated in every case of hearsay evidence on this approach would inevitably and unnecessarily complicate and lengthen trials”.
That having been said, writing for the majority, Justice Iacobucci holds that evidence which is admissible under a hearsay exemption may not be admissible if it does not meet the twin test of necessity and reliability. Justice Iacobucci notes:
[47]... it is clear that the existing exceptions are a long-standing and important aspect of our law of evidence. I am cognizant of their important role, and the need for caution in reforming them. Given their continuing importance, I would expect that in a clear majority of cases, the presence or absence of a traditional exception will be determinative of admissibility.
...
All this being said, it is also clear that the logic of the principled approach demands that it must prevail in situations where there is a conflict with an existing exception. For example, had there been any doubt in this appeal whether the present intentions exception required that the statement not be made under circumstances of suspicion, the principled approach would require holding that it does now. Hearsay evidence may only be admitted if it is necessary and reliable, and the traditional exception should be interpreted in a manner consistent with this requirement.
In some rare cases, it may also be possible under the particularly circumstances of a case for evidence clearly falling within an otherwise valid exception none the less not fails to meet the principled approaches’s requirements of necessity and reliability. In such a case, the evidence would have to be excluded. However, I wish to emphasize that these cases will no doubt be unusual and that the party challenging the admission of evidence falling within a traditional exception will bear the burden of showing that the evidence should nevertheless be inadmissible. The trial judge will determine the procedure (whether by voire dire or otherwise) to determine admissibility under the principled approaches requirements of reasonable necessity and reliability.
Out of Court Assertions That Are Not Hearsay
Consider again the definition of hearsay; hearsay evidence is any (1) out of Court assertion, (2) repeated in Court, (3) to prove the truth of that assertion. All three elements must be present before a question of hearsay arises. Elements (1) and (2) are fairly straightforward (although they have a few twists as seen below). It is element (3) that causes difficulty. Unless the statement is being repeated to prove the truth of its contents, there is no hearsay issue.
Thus, if a statement is repeated in Court for a reason other than its truth, the statement is not hearsay. What might be other reasons for adducing an out of court statement? An example might be an oral contract, which is established by the fact a statement is made. As mentioned above, contractual language is neither true nor false. If X says, “I will buy your car for $200” and Y says “I accept”, a contract (subject to the Statute of Frauds) is established. It does not matter if X was lying when X said “I will buy your car for $200”; the truth of the statement is irrelevant, its importance arising from its making and not its truth. The statement establishes the contract – truth is not relevant.
[48] Similarly, to show A was careful in, say, docking a boat, it is proper to show A was told by someone with apparent authority that any wrecks were clearly marked. If A testifies “the harbour master said the wrecks were marked” A is not trying to prove the wrecks were marked but rather that A was acting reasonably at the time in thinking the wrecks were marked.
[49]The leading case here, yet again, is Subramanian.
[50] Here an accused was charged with possessing illegal ammunition and wanted to testify, in his defence, that he had been forced to by guerillas who told him they were Communists and would kill him if he did not co-operate. The question before the Court was, is the repetition of what the guerrillas said hearsay? No, and this is because the truth of the statements, “we are Communists and will kill you if you don’t co-operate” is irrelevant. They could be Royalists who would give him kudos for refusing to help.
The truth is irrelevant; what counts is that the statement was made and Mr. Subramanian believed it and was, accordingly, justified in doing what he did. The Court notes:
[51]The fact that the statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presence the statement was made.
Exemptions to the Hearsay Rule
As noted above, in the last decade there has been a significant change in the analysis of when evidence, though hearsay, may be admissible. Prior to Starr
[52], the analysis of hearsay proceeded in three stages. First, was there a hearsay issue? If so, did a traditional exception to the hearsay rule apply? If not, could the evidence be admitted anyway, on the basis the evidence was both necessary and reliable?
[53] Starr changed all this
[54]. Now the analysis is as follows: (1) is there a hearsay issue? (2) does a traditional exception apply? (3) if a traditional exception applies, can the party opposing admission show that the evidence is, nevertheless, not necessary and reliable? (3a) if a traditional exception does not apply, can the party seeking admission show that the evidence is both necessary and reliable? Obviously, a key element in the new analysis remains the nature and scope of the traditional exceptions. While challenged, the traditional exceptions remain central to the admission of hearsay evidence.
The traditional exceptions to the hearsay rule themselves are numerous and not always consistent. They cannot be made to reduce to a simple single rule; each exception is in isolation from the others. That said, the exceptions usually apply where there is good reason to believe the hearsay evidence is particularly likely to be accurate or correct. Broadly put, most of the exceptions can be explained on the basis of two elements usually called the Wigmore criteria:
The evidence is relevant, material and important but cannot be adduced except by hearsay; and
There is some circumstantial indicia of trustworthiness that suggests the hearsay is believable.
It may be that as a result of the functional approach ultimately the exceptions will be assimilated to the Wigmore Criteria.
[55] Indeed, by setting up a complex test with shifting onuses, the functional approach might seem to guarantee the ultimate destruction of the traditional exceptions. Trials are pragmatic and awkward structures seldom survive. Reducing the hearsay exceptions to a uniform test of reliability and necessity simplifies matters enormously and, in the long term, simplicity usually pushes out complexity. That said, current experiences seem to suggest the traditional exceptions are applied fairly mechanically (such as before Khan!) and necessity and reliability are considered only if an exception is unavailable. Perhaps the best that can be said is that the law regarding hearsay is evolving.
Specific Exceptions
(a) Testimony in Previous Hearings
This exception to the hearsay rule is very simple and set out clearly by the Supreme Court of Canada in the Erdman
[56] where Justice King notes:
Where a witness has given his testimony under oath in a judicial proceeding, in which the adverse litigant had the power to cross-examine, the testimony so given will, if the witness himself cannot be called, be admitted in any subsequent suit between the same parties, or those claiming under them, provided it relate to the same subject or substantially involve the same material questions.
The key to this exception to the hearsay is that the evidence deals with the same issue in the previous and current litigation, cross-examination was available at the first hearing, and the witness examined is unavailable through death, illness, mental instability or just cannot be found even though reasonable attempts to locate the witness have been made. A similar statutory provision exists under the Criminal Code.
[57](b) Admissions
As a general rule, anything a party says can be used in evidence by the opposite party. This is an extremely important and broad exception to the hearsay rule. No issue of unavailability, circumstantial guarantees of trustworthiness or anything similar is required for this exception to the hearsay rule to apply – if one party said it, wrote it or in any way indicated it a party opposite can use it.
[58] This exception to the hearsay rule is well set out in the Jacks
[59] decision where the Court writes:
Admissions are ordinarily admissible as original or substantive evidence of the truth of the statements made or of the existence of facts which they tend to establish; while they may be used to impeach or contradict the testimony of the party who made them, their admissibility does not depend on, nor should their effect be confined to, their tendency to do so.
The admissions exception to the hearsay rule is limited in several respects. First, an admission is evidence only with respect to the party making the admission. Thus, where there are two defendants and one makes an admission, the plaintiff may use the statement in the plaintiff’s case against the defendant making the admission and not the other. The case against the co-defendant must be made out some other way.
Second, silence may be used as an admission
[60], but only where silence necessarily implies an admission. A person may be taken to have adopted an admission where, based on conduct or silence when confronted with accusations, the person is seen as adopting the truth of the accusations. This is illustrated by the McKenzie
[61] case where the Court found silence in the face of an allegation a car was stolen amounted to some type of admission of the theft. The Court notes:
One would expect a normal, honest vendor, when told that he had sold stolen goods, to deny the allegation vehemently... Under these circumstances, (the defendant vendor) must be taken to have implicitly admitted the truth of the allegations.
But this reasoning cannot be taken too far. Thus, in the Eden
[62] case an allegation put to a youth while in the back of a police car and not responded to was not taken to be adopted by silence. The Court of Appeal pointed out that the youth “was entirely within his rights in remaining silent and no imputation unfavourable to him should be placed upon the exercise of that right”. An admission from silence will only be implied if silence inescapably implies that admission.
[63] The finding that an admission has been made by silence in the face of allegations of wrongdoing can be found only after a voir dire to determine if there is any evidence of adoption. Even if some evidence exists, the trier of fact must find adoption occurred before considering the admission.
[64]As the Court of Appeal noted in R v Levert
[65], “adoption by silence” must be approached with caution.
[66] As a practical matter, admissions from silence will rarely be found. Third, admissions, particularly by businesses, may also be made by agents or employees. If a law firm is sued for, say, breaching a contract to buy photocopy paper, a statement made by that firm’s bookkeeper about the contract is going to be an admission against the law firm. The bookkeeper’s job encompasses things like making contracts for photocopy paper. The very same statement, however, made by the receptionist probably would not be an admission – the receptionist’s job does not (or should not) go so far as to making contracts for a law firm. The question in considering admissions by agents is whether the admission is made about something the agent deals with as part of their agency. Broadly put, a statement by an employee or agent within the scope of their employment or agency can be admitted as an admission.
[67](c) Statement Against Interest
The statement against interest exception to the hearsay rule is often confused with the admission exception. Recall, under the admission exception, anything a party says can be used against that party regardless of the hearsay rule. The admission exception applies only to parties. The statement against interest exception to the hearsay rule differs from the admission exception in that it applies to anyone and can be used to adduce, for proof of its truth, any out of Court statement if that statement was “against interest” and the declarant is unavailable.
Narrowly put, a statement against interest is a statement that, at the time it was made, was so contrary to the declarant’s interest that a reasonable person would not have made the statement if it were not true. The statement can be against either financial or penal interest but it must be to the declarant’s immediate prejudice. Further, the statement must be wholly against the declarant’s interest – a confession to shoplifting that gives the declarant an alibi for murder will not amount to a statement against interest. In Demeter
[68] the Court described four prerequisites to the admission of hearsay evidence as being against interest:
1. the declarant must have made a statement of fact within their knowledge;
2. the fact was to the declarant’s immediate prejudice;
3. the declarant knew the fact was to their immediate prejudice;
4. the prejudice was against pecuniary, proprietary or penal interest.
Additionally, the declarant must be unavailable due to death, insanity, illness or other serious reason.
[69]The statement against interest exception to the hearsay rule can be stated thusly:
An oral or written declaration, by an unavailable person, of a fact that person knows to be against their immediate pecuniary or penal interest is admissible, though hearsay, of the facts contained in the declaration.
An example of the exception may help to clarify the nature of the statement against interest exception. If someone, while drinking at a tavern, says that they stole thousands of dollars from their employer, but only gives their first name and no details, then the exception cannot apply. If that same person goes to a police station and makes a full statement to the same general effect to the police the exception does apply. In the first situation there was no real risk to the speaker’s panel interest while in the second a charge was almost certain. The O’Brien
[70] case turned on this very issue. In O’Brien a now dead witness, Jensen, went to a lawyer, confessed a crime but said he would not expose himself to prosecution. The Supreme Court of Canada rejected the out of court statement made by Jensen, saying it was hearsay not falling within the statements against interest exception. Justice Dickson writes:
...the entire circumstances in which the statement was made negative the conclusion Jensen apprehended exposing himself to prosecution...The guarantee of trustworthiness of a statement made out of Court flows from the fact that the statement is to the “deceased’s immediate prejudice.” To be admissible there must be a realization by the declarant that the statement may well be used against him. That is the very thing Jensen wished to avoid. He had no intention of furnishing evidence against himself.
If the statement cannot be used to the declarant’s prejudice, the statement cannot amount to a declaration against interest.
(d) Business Records
As a practical matter, organizations generate a great deal of paper much of which is, effectively, anonymous. For example, shipping invoices contain important information that is relied on every day by business but which are often prepared by several unnamed authors. Such invoices, however, if allowed to prove their contents, are hearsay evidence. As a practical matter, an exception to the hearsay rule exists to allow business records to be proven for their truth. The business records exception is justified because (a) such evidence is generally reliable and (b) it usually cannot be adduced otherwise. Consider, say, an automobile manufacturer’s records of engine block numbers. Such records are relied on daily to determine entitlements to warranty protection; the evidence is reliable. Further, no one could possibly have an independent memory of such engine block numbers and the only way to prove such a number (assuming it is an issue) is through a business record.
[71]At common law a business record is admissible to prove the truth of its contents if:
1. it was made at or near the time of the matter recorded;
2. it was made by someone with a person with personal knowledge of the matter recorded and whose position obliged them to record the information; and
3. it was made in the ordinary course of business.
[72]Business records are admissible as an exception to the hearsay rule if the common law principles apply. Palter v Great West
[73] is a fairly typical business record case. A doctor made a physical exam and took some notes and then died. Obviously the doctor could not testify; the Court had to determine if the notes were admissible? In finding the notes admissible the Court noted they were made (1) at the time of the exam, or thereabouts, (2) by the doctor personally, and (3) in the ordinary course of a medical practice. The Court referred, with approval to a statement in Halsbury’s:
...the statement must (1) relate to some act or transaction performed by the person making it in the ordinary course of his business and duty; (2) be made in the ordinary course of his business under a duty to make it; and (3) be made at or near the time at which the act or transaction to which it relates was performed.
The Supreme Court in Ares v. Venner
[74] comments:
(business records) made contemporaneously by someone having a personal knowledge of the matters then being recorded and under a duty to make the entry or record should be received in evidence as prima facie proof of the facts stated therein.
Note the availability, or unavailability, of the person making the record is not important - - the exception applies regardless.
Business records may also be admitted into evidence by statute. The statutory requirements to adduce business records are less onerous than the common law prerequisites and it is more common for business records to be admitted pursuant to statute than common law. The key differences between common law and the statutory exception are that personal knowledge of the facts recorded is irrelevant under statute, except as to weight, but written notice of the intention to call business records must be given before the evidence is to be called. A typical provision appears in the Ontario Evidence Act, s. 35, which provides:
s. 35 (2) Any writing or record made of any act, transaction, occurrence or event is admissible as evidence of such act, transaction, occurrence or event if made in the usual and ordinary course of any business and if it was in the usual and ordinary course of such business to make such writing or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter.
(3) Subsection (2) does not apply unless the party tendering the writing or record has given at least seven days notice...
To similar effect is s. 30 of the Canada Evidence Act, which allows the admission of “a record made in the usual and ordinary course of business” provided at least seven days notice of the intention to adduce business records is given.
Commenting on the statutory exception to the hearsay rule, the Court in CAS v S.K.
[75] notes:
Although uniformity in the various statues is lacking, all of the statutes speak of the need for the record or writing to be made in the “usual and ordinary course of business”. The Ontario Evidence Act imposes a further requirement that “it was in the usual and ordinary course of business to make the writing or record at the time … or within a reasonable time thereafter”. The additional “duty to make the record” is consistent with common law and reinforces the guarantee of reliability; a key factor in the principled approach to the admissibility of hearsay as evidence.
Merely delivering notice of the intention to call business records and then filing with the Court those (allegedly) business records is not sufficient to allow the use of those documents to prove the truth of their contents. The other conditions precedent to the use of the documents (the circumstances of creation and their use as actual business records) must be proven independently.
[76] Unless agreed to, someone must testify as to the circumstances of the creation of the business records for the exception to apply. Mere production of a document is not sufficient to prove the document or its contents.
[77]In calling business records counsel should consider both the common law and statutory exceptions to the hearsay rule. Although not often required, the common law business record exception to the hearsay rule is available as necessary.
Generally speaking, the only time the common law exception is needed is if notice was not served – it is rare this happens but when it does the common law exception is of great assistance.
(e) Past Recollection Recorded
Often a witness at trial has no recollection of a relevant and material fact, but did make written notes about the fact earlier. The classic example is a witness who saw a car speeding away, wrote down the licence plate number, but at trial has no memory of the licence plate number. Since such evidence is, often, necessary and has the reliability of being recorded at a time when memory was fresh, an exception to the hearsay rule is made for past recollection recorded.
[78] The American Federal Rules of Evidence set this exception out well:
[79]Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.
The Alberta Court of Appeal in Meddoui
[80] stated the rule as follows:
- The past recollection must have been recorded in some reliable way.
- At the time, it must have been sufficiently fresh and vivid to be probably accurate.
- The witness must be able now to assert that the record accurately represented his knowledge and recollection at the time. The usual phrase requires the witness to affirm that he ‘knew it to be true at the time’.
- The original record itself must be used, if it is procurable.
It should be noted that if the person whose past recollection is said to be recorded does not acknowledge making the recording of the recollection, then the exception does not apply.
[81](f) Res Gestae
The res gestae exception to the hearsay rule can be stated thusly:
A hearsay statement relating to a startling evidence or condition that was made while the declarant was under the stress of excitement caused by the event or condition is admissible though hearsay.
The reasoning here is that the event was so startling that the declarant does not have reflective capacity and will only speak the truth as the declarant sees it.
[82] The statement must be made while the declarant still feels the shock of the event; if the shock wore off and reflective thought occurred, the statement will not be admitted. The Court in Gilbert
[83] accepted the following definition of the res gestae exception:
Whatever act, or series of acts, constitute, or in point of time immediately accompany and terminate in, the principal charged as an offence against the accused, from its inception to its consummation or final completion; or its prevention or abandonment, – whether on the part of the agent or wrong-doer in order to its performance, – and whatever may be said by either of the parties, during the continuance of the transaction, with reference to it, including herein, what may be said by the suffering part, though in the absence of the accused, during the continuance of the action of the latter – form part of the principal transaction, and may be given in evidence as part of the res gestae, or particulars of it.
The view of res gestae in Gilbert comes out of the caselaw. The Wilkinson
[84] decision is fairly typical. A deceased made a statement suggesting that she was in the midst of a fight with her husband – she was then shot by an unseen shooter. The prosecutor wanted to adduce the deceased’s statement to prove she was fighting with her husband. The statement was taken as hearsay being an out of court statement adduced to prove the truth of its contents. Was the statement admissible as part of the res gestae? The statement was made contemporaneous with the fight and flowed from it and, as a result, was admissible as being part of the res gestae. Justice Hall notes:
She [the deceased] had no opportunity for fabrication and her statements were not mere narrative of events but were part of the transaction itself, and are admissible on this ground.
Similarly, Lord Wilberforce notes in Ratten v The Queen
[85]:
As regards statements made after the event it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded. Conversely, if he considers that the statement was made by way of narrative of a detached prior event so that the speaker was so disengaged from it as to be able to construct or adopt his account, he should exclude it. If the drama, leading up to the climax, has commenced and assumed such intensity and pressure that the utterance can safely be regarded as a true reflection of what was unrolling or actually happening, it ought to be received.
At base, res getae is based on the assumption that something said spontaneously and without time for reflection is likely to be sincere and believed.
[86] The statement may be false as a result of misperception, but it will not be fabricated.
(h) Existing Statement of Physical, Mental or Emotional State
As a general rule, an otherwise hearsay statement of the declarant’s then existing state of mind, emotion, sensation or physical condition is admissible. The statement must be of an existing state or condition and a recollection thereof is not sufficient to be admitted. United States Federal Rule of Evidence 803(3) sets out the exception as follows:
Then existing mental, emotional, or physical condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.
(i) Dying Declarations
The dying declaration exception to the hearsay exclusion is rarely seen.
Briefly stated the dying declaration exception is as follows:
Where a hearsay statement is made by a dying declarant, who knows death is imminent, and that statement is sought to be adduced in a criminal proceeding for which the death of the declarant is a necessary element and the statement relates to the circumstances of death, the statement is admissible.
It is important to notice how limited the dying declaration exception is – it applies only where five elements all apply:
- Declarant is deceased;
- Declarant knew of impending death;
- The statement related to death;
- Criminal case; and
- Element of criminal charge is death of declarant
The exception is generally found in homicide cases. There are very few offences other than homicide for which the death of someone is an essential element. Thus in the Jurtyn
[87] decision the Court describes the exception as follows:
It is a general rule that dying declarations are only admissible where the death of the deceased declarant is the subject of the charge, and they concern the circumstances of the death ... it [the declaration] must be preferred as testimony in a public prosecution [it must be] not merely for an act which resulted in fact in death, but for an act involving legally the resulting death as a necessary element...
The rather tragic Schwartzenhauer
[88] case illustrates how narrow the dying declaration exception is. Here an accused was charged with an offence, “namely, to use unlawfully on the person of VK an instrument with intent to procure a miscarriage of VK...”. The offence was unlawfully procuring a miscarriage – not manslaughter. As it happened, the death of VK resulted from the induced miscarriage, but death was neither the focus of the charge or an element of the offence.
As a result, a dying declaration made by VK was not admissible. It should be noted that, if the accused in Schwartzenhauer had been charged in modern times with criminal negligence causing death the declaration would have been admissible because death is a necessary element of that offence.
(j) Official Statements
The Evidence Acts provide for the proof of certain government documents. Thus, Section 31(2) of the Evidence Act (Ontario) provides that entries in books of account of a Municipality are admissible as evidence of the truth of their contents without further proof. This is a specific statutory exception to the hearsay rule. There is, however, a broader common law which provides:
[89]a written report or record of a public official is admissible if the official had first hand knowledge of the reported facts and had a duty to make the record or report.
As early as 1785 the Court notes
[90]:
The law reposes such a confidence in public officers that it presumes they will discharge their several trusts with accuracy and fidelity; and therefore, whatever acts they do in discharge of their public duty may be given in evidence and shall be taken to be true, under such degree of caution as the nature and circumstances of each case may appear to require.
While normally the official statements exception to the hearsay rule applies to civil servants, it is not limited to them. A public official may be, for example, a harbour master, or a school teacher, or even an official of a trade organization. The question is what role the declarant plays – is it one related to a governmentally sanctioned role dealing with the public? If so, the declarant is a public official.
Voir Dire
A voir dire is a “trial within a trial”. It is used to determine conditions precedent to the admission or exclusion of evidence. The voir dire may dispose of the entire case - - if the evidence is excluded the prosecution may fail - - or the voir dire may deal with a relatively minor point. Nevertheless, regardless of how complex or simple a voir dire is a separate proceeding from the trial itself. Accordingly, the evidence heard on the voir dire does not, unless there is agreement by the parties, form part of the evidence at trial.
It is critically important to note that the voir dire, a trial within a trial, is used in evidentiary objections only when there needs to be some preliminary fact proven in order to allow the presiding judicial officer to make a determination of admissibility. Thus, if evidence is inadmissible on its face no voir dire is required. Similarly, if, an objection is made for example, suggesting that evidence is inadmissible because it is hearsay but the purpose for which the evidence is sought to be admitted is not to prove the truth of the statement then, similarly, no voir dire is required. The purpose of a voir dire is to prove some fact which will then allow the presiding judicial officer to make a determination as to admissibility.
Most commonly voir dires are seen dealing with the admissibility of a statement made by an accused to a person in authority, usually a police officer. It is important to be clear that such “confession” voir dires have nothing to do with hearsay. The voluntariness of a statement, which is the focus of a “confession” voir dire does not relate to its hearsay nature. Almost by definition statements made by an accused to a police officer will be hearsay - - they are usually being adduced to prove the truth of the statement. That said, since the statement is normally being used against the accused, a traditional exception, admission, applies and so the statement is usually not barred by the hearsay rule. Nevertheless, the confession rule, which requires statements made by an accused to a person in authority be proven free and voluntary to beyond a reasonable doubt, does apply and a voir dire is necessary.
Regardless, while voir dires are less likely to be seen in hearsay matters, the process of conducting the voir dire is identical regardless of the nature of the underlying evidentiary objection.
As a general rule, voir dires proceed on a relatively informal basis without any documentary notice of motion. That said, and despite some recent judicial commentaries that may be interpreted to the contrary, wherever a Charter remedy under s. 24 (1) of the Charter is sought proper notice for the voir dire must be given to both the federal and provincial Attorneys General under s. 109 of the Courts of Justice Act. Such notice must be given at least 15 days before the matter is raised and the failure to give notice is by statute fatal.
[91]A few of the more significant principals that apply to a voir dire are set out well by our current Attorney General, Chris Bentley, in his Criminal Practice Manual. I can do no better than to merely repeat them.
[92]1. The voir dire is a trial within a trial. It is a separate and isolated proceeding in many ways. If the evidence is ruled admissible, it will not be evidence at the trial unless it is called again (or in a judge alone trial is made evidence on consent).
2. The admissibility ruling made on the voir dire will determine whether the evidence tendered, either by the Crown or the defence, can be lead at the trial. Evidence excluded may only in rare cases be re-introduced at a trial (R. v. Calder, [1996] 1 S.C.R. 660, 105 C.C.C. (3d) 1, 46 C.R. (4th) 133, 132 D.L.R. (4th) 577, 194 N.R. 52, 34 C.R.R. (2d) 189, 90 O.A.C. 18).
3. A voir dire is a separate proceeding for the purpose of s. 13 of the Charter. This means that evidence given by a witness on a voir dire cannot be used to “incriminate” that witness. However, it would appear that the witness may have his/her credibility attacked on the basis of what was testified to during the voir dire (see Chapter 4.12).
4. The party with the burden of proof on the voir dire must lead the evidence. This is usually the Crown with respect to non-Charter matters, and the accused with respect to Charter applications.
5. There is some evidentiary issues which become complicated because of the various challenges brought to the item of evidence. For example, a statement by an accused to a person in authority might have its evidentiary admissibility challenged though the common-law confessions rule, and also through ss.10(b) and 7 of the Charter. The burden of proof with respect to the confessions rule is on the Crown beyond a reasonable doubt. The Crown must lead the evidence. The burden of proof with respect to the Charter application is on the accused, on a balance of probabilities. Two voir dires may be held, however, this is a rather lengthy and cumbersome procedure. The more common practice is to hold one voir dire, and sort out the evidentiary issues later.
* This paper may be reproduced in whole or in part without prior authorization provided only reference is made to its date and author.
[1] (1956), 1 WLR 965, 970 (P.C.)
[2] R v. Khelawon, 2006 SCC 57 para 35
[3] [2006] OJ No. 2662, para 3
[4] (1956), 1 W.L.R. 967 (PC)
[5] Evidence (2nd ed., 1972) 584
[6] Para. 160
[7] 7th Ed., 1990, p. 42
[8] Thus, in R. v. Smith [1992] 2 S.C.R. 915, 918 the Chief Justice declines to undertake a comprehensive definition of hearsay preferring merely to “establish the parameters of the debate” by reference to Subramanian. The difficulty of an authoritative definition of hearsay were referred to by Lord Reid in Myers v. DPP [1965] A.C. 1001, 1070 where he pointed out that “it is difficult to make any general statement about the law of hearsay which is entirely accurate”.
[9] R. v Starr, [2000] 2 SCR 144 para. 167
[10] The hearsay rule is intended to ensure fair and expeditious trials. Its continued vitality rests on its function and not “a superstitious awe... about having any truck with evidence that involves A’s telling the court what B said”: Cross, “What Should be Done about the Rule Against Hearsay?” [1965] Crim. L.R. 68, 82
[11] That is, (a) an out of court assertion, (b) repeated in court, (c) to prove the truth of that assertion.
[12] It also captures the surprisingly common situation where the witness testifying is also the out-of-court declarant. If the witness is merely repeating what they previously said, or, more commonly, wrote with no current recollection all the dangers of hearsay remain: see Stewart, H. “Prior Identification and Hearsay” (1998), 3 Can. Crim. L. Rev. 61
[13] This is the Wright v Tatham (1837), 7 Ad & Ed 313 (H.L.) case, where the House of Lords held implied assertions could be hearsay.
[14] Of course, error remains possible, but this is true of any declaration whether made is court under oath or not.
[15] [1992] 2 SCR 915, 933
[16] See R. v Ly [1997] 3 SCR 698; R. v Edwards (1994), 34 C.R. (4th) 113, aff’d [1996] 1 SCR 128; R. v McKinnon (1989), 70 CR (3d) 10 (O.C.A.); R v Wysochan (1930), 54 CCC 172 (Sask CA)
[17] Supra
[18] Supra at 16, 17
[19] See Rein, A. Scope of Hearsay (1994), 100 LQR 431 for an analysis of the English position on hearsay from implied assertions.
[20] Of course, conduct intended to make assertions can be hearsay – but in such cases an assertion is intentionally made: R. v. Khelawon 2006 SCC 57 para 34 .
[21] R. v D. (1993), 81 C.C.C. (3d) 65 (O.C.A.); leave refused (1993), 82 CCC (3d) vi (SCC)
[22] [1990] 2 S.C.R. 531; see also R v Smith [1992] 2 SCR 915; R v U, [1995] 3 SCR 764; R v Rockey, [1996] 3 SCR 829; certainly, the Supreme Court had earlier revised the hearsay rule but only in rather limited ways: see Ares v Venner, [1970] SCR 608 (business records), R. v O’Brien [1978] 1 SCR 591 (statements against interest).
[23] [2000] 2 SCR 144
[24] McPherson v Bernstein 2005 CanLII 18866; Steward v Berezan [2005] [2005] BCSC 1847
[25] R. v Pelletier (1978) 38 C.C.C. (2d) 515 (O.C.A.)
[26] At page 524. In this case declaration against penal interest.
[27] R. v Eriswell (1790), 3 T.R. 707, 721
[28] Supra
[29] Khan, at 540
[30] R. v Finta (1992) 75 C.C.C. (3d) 257
[31] Finta, 527
[32] Stobart v Dryden 150 ER 581, 623
[33] Omand v Alberta Milling, [1922] 2 WWR 412, 413; although it was obiter, the various decisions in Sugden v Lord St. Leonards (1876), 1 P.D. 154 illustrate the principled and more mechanistic approach to hearsay and its exclusions. The Master of the Rolls, at 242, was prepared to expand the admission of hearsay on principle:
The Court should be anxious, not narrowly to restrict the rules of evidence, which were made for the purpose of furthering truth and justice, but, guided by those great principles which have guided other tribunals in other countries in admitting this kind of evidence generally, to admit it at all events in the special case which we have under consideration.
Holding a contrary view, Lord Mellish wrote, at 251:
... you cannot admit it [the contested evidence] unless you can bring it within some of the exceptions to the general rule, that hearsay evidence is not admissible to prove a fact which is stated in the declaration. It does not come within any of the rules which have been hitherto established, and I doubt whether it is an advisable thing to establish exceptions in a case which has never happened before, and may never happen again, for you then establish an exception which more or less throws a doubt on the law.
The choice of uncertain principle or certain mechanics is not limited to the new millenium.
[34] [1970] SCR 608
[35] Justice Hall endorses the minority decision in Myers v DPP [1965] AC 1001 and agrees with Lord Pearce, in Myers, in saying that a refusal to reform hearsay judicially amounts to “a surrender to formalism”.
[36] R. v Khan [1990] 2 SCR 531
[37] SCR at 540
[38] [1992] 2 SCR 915
[39] At 931 the Court writes:
It has long been recognized that the principles which underlie the hearsay rule are the same as those that underlie the exceptions to it. Indeed, Wigmore on Evidence, 2d ed. (1923), described the rule and its exceptions at § 1420 in the following terms:
The purpose and reason of the hearsay rule is the key to the exceptions to it. The theory of the hearsay rule is that the many possible sources of inaccuracy and untrustworthiness which may lie underneath the bare untested assertion of a witness can best be brought to light and exposed, if they exist, by the test of cross- examination. But this test or security may in a given instance be superfluous; it may be sufficiently clear, in that instance, that the statement offered is free from the risk of inaccuracy and untrustworthiness, so that the test of cross-examination would be a work of supererogation. Moreover, the test may be impossible of employment – for example, by reason of the death of the declarant – so that, if his testimony is to be used at all, there is a necessity for taking it in the untested shape. These two considerations – a Circumstantial Guarantee of Trustworthiness, and a necessity, for the Evidence – may be examined more closely ....
[40] At p. 932
[41] Not without its critics. Thompson, D. in Supreme Court Goes Hunting and Nearly Catches a Hearsay Woozle 37 C.R. (4th) 282, 285 comments:
Necessity and Reliability. For better or worse, the Supreme Court has adopted Wigmore’s too-tidy explanation for the hearsay exceptions, namely the twin criteria of necessity and reliability. These two factors have become the means of expanding the admissibility of hearsay.
[42] As the British Columbia Court of Appeal held in R v Collins (1997), 118 CCC (3d) 514; see also, to the same effect, R v Duff (1994), 32 C.R. (4th) 153 (Man. C.A.); see also Justice L’Heureux-Dubé dissent in Starr at paragraph 44
[43] Thus in Gormley v Canada Permanent [1969] 2 O.R. 414 (H.C.J.) a hearsay statement was found admissible pursuant to the exception allowing declarations against a pecuniary interest even though the statement exposed to declare it to nothing more than a possibility of a $4.00 liability. Such a trifling amount would hardly seem sufficient to ensure trustworthiness or reliability.
[44] 2006 SCC 57 at para 59.
[45] Para. 48
[46] Para. 49
[47] Para. 211, 213, 214
[48] Creaghe v Iowa Home Mutual, 323 F2d 981 (1963)
[49] The Douglas (1882), 7 P.D. 151
[50] Supra
[51] Supra, at 963
[52] [2000] S.C.R. 144
[53] See, for example, R. v Duff (1994), 32 C.R. (4th) 154
[54] The decision of the Supreme Court in R. v. Khelowan 2006 SCC 57 clarified the application of Starr but did not change its overall impact
[55] R. v Khan [1990] 2 SCR 531; R. v Starr 2000 S.C.C. 40
[56] Walkerton v Erdman (1894), 23 S.C.R. 352
[57] S. 715
[58] R. v Evans, [1993] 3 SCR 653; see also Coady v Boyle (2003), 47 RFL (5th) 283
[59] Jacks v Woodruff, 132 N.E. 2d 603, 607
[60] To wit, silence denotes consent
[61] MacKenzie v Commer (1973), 44 D.L.R. (3d) 473
[62] [1970] 2 O.R. 161
[63] See also R. v Christie [1914] AC 545, 559; R. v Pammer (1979), 1 Man. R. (2d) 18 (C.A.)
[64] R v Warner (1994), 94 C.C.C. (3d) 540 (Ont. C.A.)
[65] [2001] O.J. No. 3907, para. 26
[66] See also, R v Morales (2006), 81 O.R. (3d) 161, para. 19
[67] R v Strand Electric, [1969] 2 CCC 264 (Ont. C.A.)
[68] R v Demeter (1975), 25 CCC (2d) 417
[69] R v Lucier, [1982] 1 SCR 28
[70] R. v O’Brien (1977), 76 D.L.R. (3d) 513
[71] See Myers v D.P.P. [1965] A.C. 1001 (H.L.); and the discussion of that case in Sopinka, Lederman & Bryant, Law of Evidence in Canada (2nd ed. 1999) p. 213 ff
[72] See, for example, Cargil Grain v Davie [1977] 1 SCR 569
[73] [1936] O.R. 341
[74] [1970] S.C.R. 608
[75] [2006] O.J. No. 2662, para. 5
[76] O’Brien v Shantz (1999), 167 D.L.R. (4th) 132 (Ont. C.A.)
[77] Murphy v Predator 2002 Carswell Alta. 547 (Alta. Q.B.)
[78] See, for example, R v Rouse, [1977] 4 WWW 734, aff’d [1979] 1 SCR 588
[79] Rule 803(5)
[80] (1990), 2 CR (4th) 316
[81] R. v Courchene (1999), 135 Man. R. (2d) 267 (Q.B.)
[82] R v Folland (1999), 132 C.C.C. (3d) 14; R v Mitchell [2006] O.J. No. 4172
[83] Gilbert v The King (1907), 12 C.C.C. 127
[84] R. v Wilkinson [1934] 3 D.L.R. 50
[85] [1971] 3 All E.R. 801
[86] R. v Schwartz (1978), 40 CCC (2d) 161 (NS CA)
[87] [1958] OWN 355; see also R. v Harrison (2001), 150 B .C.A.C. 247 for a current statement of the issues
[88] [1935] SCR 367
[89] Finestone v The Queen [1953] 2 SCR 107
[90] R. v Aickles (1785), 1 Leach Cr. L. 390, 392
[91] Paluska v. Cava (2002), 59 O.R. (3d) 469 (O.C.A.); of course, a court may grant an adjournment to permit service properly to be delivered.
[92] Bentley, Criminal Practice Manual, Carswell Toronto – 2000 (updated) pg. 5-48
