Thursday, November 22, 2012

Right to confront witnesses not a consideration in admission of hearsay statements under principled approach

R. v. Taylor, 2012 ONCA 809 deals with a statement made by a dying complainant. The statement is not a dying declaration because the charge did not involve homicide. 

The accused argued that the inability to cross-exam rendered the statement in admissible. The Court of Appeal disagreed holding that the "right" to confront an accuser - that is to conduct cross - is not protected constitutionally in Canada and forms no part of the principled approach to admission of hearsay:

[18]       The admissibility of the statement in this case rests on the test set forth in cases from the Supreme Court of Canada, such as R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517 andR. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298. Contrary to the submission of counsel for the appellant, the admissibility of this statement cannot be determined under the approach taken by the European Court of Human Rights in Al-Khawaja and Tahery. While that decision is interesting and provides a helpful survey of developments in the hearsay rule in various common law and other countries, its context is rooted in specific United Kingdom statutory provisions, such as ss. 23 to 28 of the Criminal Justice Act 1988 (U.K.), 1988, c. 33; Part 11, Chapter 2 of the Criminal Justice Act 2003 (U.K.), 2003, c. 44; and, most importantly, Article 6 §§ 1 and 3(d) of the Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 U.N.T.S. 221 at 223, Eur. T.S. 5 [ECHR]. Article 6 § 3(d) is a form of confrontation guarantee similar to the Sixth Amendment to the United States Constitution. Article 6 §§ 1 and 3(d) provide as follows:

1.  In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law....

3.  Everyone charged with a criminal offence has the following minimum rights:


(d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.


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