hearsay Flashcards
What is the test for the admission of a KGB statement?
A court may admit a prior inconsistent statement of a non-accused witness under the principled approach to hearsay: R. v. B. (K.G.), [1993] 1 S.C.R. 740.
the applicant must demonstrate three criteria on a balance of probabilities to render the prior inconsistent statement admissible:
a) the statement would have been admissible if it had been offered as the witness’s evidence-in-chief: R. v. B. (K.G.), [1993] 1 S.C.R. 740 at para. 74;
b) the statement must have been made in circumstances that provide some indicia of its reliability: R. v. B. (K.G.), [1993] 1 S.C.R. 740 at para. 104; and
c) the statement must be necessary. Necessity is made out when a witness recants his or her earlier statement because that evidence is no longer available: R. v. B. (K.G.), [1993] 1 S.C.R. 740 at para. 110.
What is a prior inconsistent statement?
In order for the court to find that the witness’s prior statement is inconsistent with his or her present testimony, the difference between the statements must be material; the discrepancy must be relevant to the events in question, credibility or reliability. A claim that a witness has no recollection of events that he or she described in an earlier statement is an inconsistency: R. v. McInroy, [1979] 1 S.C.R. 588, at p. 16.
What constitutes threshold reliability?
Threshold reliability is the central concern when assessing the admissibility of prior inconsistent statements. The trier of fact must choose between two statements from the same witness: R. v. B. (K.G.), [1993] 1 S.C.R. 740 at para. 82. Thus, the focus of the inquiry is on the comparative reliability of the prior statement and the testimony offered at trial: R. v. B. (K.G.), [1993] 1 S.C.R. 740 at para. 82. The only reliability that matters at this point is whether or not the statement can be admitted. Whether the out-of-court statement will ultimately be relied on is a matter for the trier of fact at the end of the trial: R. v. Khelawon, 2006 SCC 57, at para. 50.
SCC recognized three indicators of threshold reliability:
a) the presence of an oath, solemn affirmation or solemn declaration following a warning that the statement may be used as evidence at trial and that a false statement may lead to criminal sanctions: R. v. B. (K.G.), [1993] 1 S.C.R. 740 at paras. 90-94;
b) a complete videotaped recording of the prior statement: R. v. B. (K.G.), [1993] 1 S.C.R. 740 at para. 100; and
c) a full and complete opportunity to cross-examine the declarant at trial: R. v. B. (K.G.), [1993] 1 S.C.R. 740 at para. 102.
A party can meet the threshold reliability requirement for a prior inconsistent statement by demonstrating that the statement is sufficiently reliable in one or both (they are not mutually exclusive) of the following ways:
(i) procedural reliability: there are sufficient methods to test its truth and accuracy; or
(ii) substantive reliability: there are circumstantial guarantees of reliability or an inherent trustworthiness in the statements
- When should a party bring a K.G.B. application?
Generally, a party should bring a K.G.B. application after attempts to either refresh a witness’s memory or have them adopt their prior statement have failed. The K.G.B. voir dire can be held independently, or as part of the 9(2) voir dire (this was the approach recommended in K.G.B.). This procedure will depend on the evidence of the witness and what is preferred by counsel and the court.
Steps that should be taken to admit a KGB prior consistent statement
- Admitting Prior Inconsistent Statement
(a) TRIAL PROPER
• Refresh Memory
o The witness gives evidence that is inconsistent with a prior statement.
o The witness is shown the prior statement for the purpose of refreshing his or her memory (i.e. show the witness the written statement, produce a transcript of an audio taped statement or listen to the tape, produce a transcript of a videotaped statement or view the tape).
(b) VOIR DIRE
• Section 9(2) of the Canada Evidence Act
o The party seeking to use the statement as proof of the statement’s contents must request a voir dire to determine its admissibility.
o Pursuant to s. 9(2) of the CEA, the party seeking to admit the statement should prove the statement and seek a ruling that the prior statement is inconsistent.
o If witness does not adopt statement, the party seeking to use the statement advises the judge that they seek to admit the statement for the truth of its contents because the witness recanted.
• K.G.B - Reliability, Necessity and Voluntariness
o The party seeking to admit the statement must establish threshold reliability on a balance of probabilities. The party should lead evidence of the circumstances surrounding the statement (e.g. the videotape of the statement, the individual who administered the oath may testify, evidence of no motive etc.).
o If the prior statement was made to a person in authority, the party seeking to admit the statement must establish on a balance of probabilities that the statement was made voluntarily. If the prior statement is an admission by the accused to a person in authority, the law relating to confessions may apply.
o Judge determines whether the statement is admissible for substantive use.
(c) TRIAL PROPER
• Statement played for the jury
o Crown may cross-examine the witness on their statement.
o Defence counsel can cross-examine the witness on their prior statement.
Threshold versus substantive reliability
And what are the hearsay dangers?
To determine whether a hearsay statement is admissible, the trial judge assesses the statement’s threshold reliability. Threshold reliability is established when the hearsay “is sufficiently reliable to overcome the dangers arising from the difficulty of testing it”.
Hearsay dangers:
The hearsay dangers relate to the difficulties of assessing the declarant’s perception, memory, narration or sincerity because of the lack of cross-examination.
To determine whether a hearsay statement is admissible, the trial judge assesses threshold reliability. The hearsay dangers may be overcome if there are adequate substitutes for testing of truth and accuracy (procedural reliability) or sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability). Hearsay can meet threshold reliability through adequate features of either or both.
Substantive Reliability: hearsay generally
To determine whether a hearsay statement is admissible, the trial judge assesses threshold reliability. The hearsay dangers may be overcome if there are adequate substitutes for testing of truth and accuracy (procedural reliability) or sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability).
The threshold for substantive reliability is met where the trial judge is satisfied that the statement is so reliable that contemporaneous cross-examination would be unlikely to change the material aspects of the statement: Bradshaw, at paras. 31, 47. In other words, the circumstances surrounding the statement negate the possibility that the declarant was not being truthful or was mistaken: Bradshaw at para. 31.
The hearsay dangers may be overcome if there is procedural reliability and/or substantive reliability
Substantive Reliability: the use of corroborative evidence
A party may rely on corroborative evidence of the statement’s reliability and ask the trial judge to consider the circumstances in which the statement was made and evidence (if any) that corroborates or conflicts with the statement: R. v. Bradshaw, 2017 SCC 35, at para. 30; R. v. Khelawon, 2006 SCC 57, at para. 100.
The threshold for the admission of corroborative evidence to demonstrate substantive reliability is high. Corroborative evidence can be relied on to establish substantive reliability only if it shows, when considered as a whole and in the circumstances of the case, that the only likely explanation for the hearsay statement is that the declarant was telling the truth about the material aspects of the statement: R. v. Bradshaw,
at paras. 4, 44. The trial judge must be able to rule out any plausible alternative explanations on a balance of probabilities: R. v. Bradshaw, 2017 SCC 35, at para. 49.
To accomplish this, corroborative evidence must meet two requirements:
- it must go to the truthfulness or accuracy of the material aspects of the hearsay statement; and
- it must assist in overcoming the specific hearsay dangers raised by the tendered statement.
To determine whether corroborative evidence can bolster the substantive reliability of a hearsay statement, a trial judge should take the following steps:
- identify the material aspects of the hearsay statement that are tendered for their truth;
- identify the specific hearsay dangers raised by those aspects of the statement in the particular circumstances of the case;
- based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement; and
- determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternative explanations such that the only remaining likely explanation for the statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement.
The following are examples of corroborative evidence that could be used to establish threshold reliability. In both cases, the corroborative evidence ruled out other explanations for the hearsay statement:
• R. v .Khan, [1990] 2 S.C.R. 531: In this case, a child’s out of court statement regarding a sexual assault was admissible because it was corroborated by a semen stain on the child’s clothes. The child had not been in contact with any other male person during that period; therefore, the only likely explanation for the hearsay statement was that the child was telling the truth.
• R. v. U. (F.J.), [1995] 3 S.C.R. 764: In this case, the court admitted a hearsay statement, in part, because it was corroborated by a strikingly similar statement by another declarant. The court was able to rule out the possibility that there was collusion or outside influence on either statement. Thus, the only likely explanation for the similarity between the two statements was that the hearsay statement was true.
• R. v. Larue, 2018 YKCA 9, aff’d 2019 SCC 25: In this case, the Court admitted an out-of-court statement made in the course of a Mr. Big operation because the circumstances could be distinguished from Bradshaw. First, the declarant lacked a motive to minimise her own culpability as the statements were made before her arrest. Second, the declarant had been cross-examined at her own trial which provided an indicium of procedural reliability. Lastly, DNA evidence was present which corroborated the appellant’s involvement. The majority held that the analysis in Khelawon still governed the analysis under the principled approach.
Procedural reliablity?
Procedural reliability is adequate substitutes for testing of truth and accuracy
Procedural reliability is established when “there are adequate substitutes for testing the evidence”, given that the declarant has not “state[d] the evidence in court, under oath, and under the scrutiny of contemporaneous cross-examination”
These substitutes must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement
Substitutes for traditional safeguards include a video recording of the statement, the presence of an oath, and a warning about the consequences of lying
However, some form of cross-examination of the declarant, such as preliminary inquiry testimony (Hawkins) or cross-examination of a recanting witness at trial (KGB) is usually required.
Necessity
Necessity is made out where: the witness refused to testify (Bradshaw), death (if they are the only source of the information), recants, where “truth is being held hostage” by the witness, it is functionally the same as a witness who refuses to testify, resulting in the necessity element being satisfied, unable to attend court due to illness (although with zoom courts this may no longer be successful).
s. 9(1) of the Canada Evidence Act. What is it and whne can we use it?
Adverse witness.
Through s. 9(1), counsel may be permitted by the trial judge to cross-examine or impeach the credibility of their own witness.
In order to do so, the trial judge must first find the witness “adverse” to the calling party’s interests. Once cross-examination is permitted, the scope must be limited to inconsistencies in the witness’ evidence.
9(1) A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but if the witness, in the opinion of the court, proves adverse, the party may contradict him by other evidence, or, by leave of the court, may prove that the witness made at other times a statement inconsistent with his present testimony, but before the last mentioned proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, shall be mentioned to the witness, and he shall be asked whether or not he did make the statement.
Almost all Canadian courts addressing the issue have agreed that the term “adverse” connotes something broader than “hostile”; namely, unfavourable, in the sense of advancing a position opposite to that of the calling party. A “hostile” witness, on the other hand is one who demonstrates an antagonistic attitude or hostile mind toward the party calling him or her: R. v. Figliola, 2011 ONCA 457 at paras. 49-50. See also: R. v. Mohamed, 2019 ONSC 1928 at para. 29; R. v. Osae, 2010 ONSC 3108 at paras. 17-19.
In finding a witness is adverse a judge may consider:
• A witness’ demeanour or attitude;
• Possible grounds for bias;
• Collusion between the witness and the opposing party;
• A prior inconsistent statement on a material point;
• The validity of an explanation given for recanting a statement;
• The relative importance of the issue with respect to which the witness’ evidence is unfavourable;
• The substance of the witness’ evidence including general truthfulness; and/or
• Other trial evidence that is inconsistent with the witness’ testimony.
A trial judge has residual discretion to not allow leave, even where the requirements of s. 9(1) have been met: R. v. Figliola, 2018 ONCA 578 at para. 45; R. v. Dooley, 2009 ONCA 910 at para. 158. In exercising this discretion, a trial judge will consider whether the prejudicial effect of the potential evidence exceeds its probative value: R. v. Dooley, 2009 ONCA 910 at para. 158.
Scope of Cross:
The prevailing view in Ontario is that once cross-examination is permitted, that cross-examination must be restricted to specific inconsistencies that have some probative value: R. v. Figliola, 2011 ONCA 457 at paras. 51, 62; R. v. Figliola, 2018 ONCA 578 at para. 56; R. v. Hamade, 2017 ONCA 387 at paras. 6-7. A failure to properly limit cross-examination amounts to reversible error: R. v. Figliola, 2018 ONCA 578 at para. 57.
s. 9(2) of the Canada Evidence Act - What is it and how do you use it?
Recanting witness.
Section s. 9(2) of the Canada Evidence Act (“CEA”) permits a party, upon successful application, to cross-examine its own witness on a prior inconsistent statement without proof that the witness is adverse.
The purpose of this process it to get the witness to adopt his or her original statement, or, alternatively, neutralize the inconsistency: R. v. Boyce, 2014 ONCA 150 at para. 18
An application under s. 9(2) must meet the following requirements:
a) there must be a prior statement;
b) the prior statement must be inconsistent with the witness’s present testimony; and
c) the prior statement must be in writing, reduced to writing, recorded on video tape or recorded otherwise.
Discretionary test:
Requires leave to cross exam. In determining whether to grant leave, the presiding judge should ask “whether the ends of justice are best attained by permitting” the cross-examination: R. v. Taylor, 2015 ONCA 448 at para. 47. The “ends of justice” standard has been found to encompass not only fairness to the accused, but also the public interest in determining the truth: R. v. M.M. (2003), 59 W.C.B. (2d) 483 at paras. 52-53. The test is established on a balance of probabilities: R. v. C.L.S., 2011 MBQB 12, at para. 42.
In determining “whether the ends of justice are best attained by permitting” cross examination under s. 9(2), the manner in which the prior statement was obtained is a central consideration. Reliability “is not an essential component of a prior statement under s. 9(2)” as it is for out-of-court statements that become substantive evidence: R. v. Taylor, 2015 ONCA 44, at para. 51; R. v. Tran, 2010 ONCA 471, at para. 38. Nevertheless, there must be a “modest degree of reliability in the statement”: R. v. Salmon, 2020 ONSC 786. Other factors the judge may consider are:
a) The extent and materiality of the conflicts in the statement;
b) Sound indicators about whether cross-examination is apt to produce a change in testimony, including an adoption of the statement as true;
c) Whether the statement was secured fairly or by trickery, abuse, inducements, oppression or Charter violations;
d) Whether the statement contains information prejudicial to the accused that will be disclosed if cross-examination and proof is permitted;
e) The risk the procedure will create distracting side issues: R. v. South, [2018] OJ No 396, at para. 99.
The circumstances in which cross-examination under s. 9(2) will be refused are relatively rare: R. v. CLS, 2011 MBQB 12, at para. 42. Thus, even where a statement is not sufficiently reliable to be admitted for the truth of its contents, courts may still permit cross-examination of the statement under s. 9(2) of the CEA: R. v. M.M. (2003), 59 W.C.B. (2d) 483, at paras. 52-53; R. v. Tran, 2010 ONCA 471, at para. 38.
A witness’s prior statement may only be found inconsistent with present testimony where there is a material difference between the statements. The discrepancy must be relevant to credibility or reliability. For instance, there is no inconsistency where a witness provides a more complete version of events in his or her trial testimony than in an earlier statement: R. v. R.D., 2014 ONCA 302, at para. 42.
In R. v. Carpenter, 1 CCC (3d) 149 at para. 15, the Ontario Court of Appeal found that officer notes of a witness’s statement, taken verbatim, amounted to “a statement reduced to writing”, even where the notes were not signed or acknowledged by the witness. Later the same year, in R. v. Cassibo (1982), 39 O.R. (2d) 288 at p. 12, the Ontario Court of Appeal held that officer notes of a witness interview, which were not taken verbatim, signed or reviewed by the witness, did not constitute a statement in writing or reduced to writing. Justice Dambrot, in R. v. Vivar, [2004] OJ No.9, at para. 8, determined the crucial difference in the cases is that the statement in Carpenter was taken verbatim, while the statement in Cassibo was not.
While an honest lack of memory does not amount to an inconsistency (use past recollection recorded for this), a feigned lack of memory of events described in an earlier statement can constitute an inconsistency under s. 9(2) CEA. See R. v. McInroy, [1979] 1 S.C.R. 588, wherein a key witness for the Crown had provided a statement to the police recounting a conversation with the accused, in which the accused admitted to committing the offence. The witness then testified at trial that she did not recall the conversation with the accused. The trial judge was called upon to decide whether the witness’ testimony at trial amounted to an inconsistency, thereby affording the Crown to opportunity to cross-examine its witness under s. 9(2).
(b) What use can be made of the prior inconsistent statement?
Prior statements are not usually made exhibits: R. v. Taylor, 2015 ONCA 448, at para. 50.
The prior statement, whether adopted or not, does not go in for the truth of its contents: R. v. Taylor, 2015 ONCA 448, at para. 50. If the witness does not adopt the statement, then it goes to credibility: R. v. Deacon, [1947] SCR 531. If the witness does adopt the statement, it is merely a factor for consideration in assessing the weight to be assigned to the witness’ trial testimony: R. v. Taylor, 2015 ONCA 448, at para. 50.
Procedure for Cross-Examining on a previous consistent statement
- Application and Voir Dire Request;
o After it becomes apparent that there are inconsistencies between the witness’
testimony and a prior statement they have made, the party who called the witness may make an application under s.9(2) CEA and seek leave to enter into a voir dire;
- Witness is Excused. Jury Directed to Retire;
- Advise Judge of Particulars and Produce Statement(s);
o The party calling the witness identifies the inconsistencies between the witness’ testimony and their previous statement(s);
o The party produces the statement(s) for inspection;
If the statement was made by audio or video recording, ideally there will be a transcript thereof that can be provided;
- Judge Reviews Statement;
o The judge reviews the prior statement to see if it is both inconsistent and recorded pursuant to the CEA. If it does not meet these requirements, the application is dismissed;
- Prove the Statement;
o If there is an inconsistency and the statement is properly recorded, the party calling the witness must then prove the statement was made;
o The witness returns to the stand and the statement is put to them;
o If the witness admits to making the statement, it has been proven;
o If the witness denies making the statement, the party calling the witness may call other evidence to prove the statement, such as the officer who took the statement;
- Opposing Counsel’s Opportunity;
o If the statement is proven, the opposing counsel may cross-examine the
witness(es) as to the circumstances under which the statement was made to try to show why cross-examination should not be permitted;
o Opposing counsel may call evidence to show that it is not in the interests of justice to grant the application;
o The party who called the witness may re-examine their witness on new issues raised and may cross-examine their witness on any evidence called by opposing counsel in the voir dire;
- Submissions and Judicial Determination re Cross-Examination;
o Each party may make submissions, in the absence of the witness, as to whether the judge should grant leave to cross-examine the witness under s. 9(2);
o If the judge permits cross-examination on the prior inconsistent statement, he or she should state the extent of cross-examination that will be permitted;
- Cross-Examination;
o The judge will recall the jury;
o The party calling the witness cross-examines the witness on the statement;
o Before introducing a statement to contradict a witness, counsel must bring the witness’s attention to the contradicting parts of the statement. This requires counsel to: a) alert the witness that he or she intends to impeach his or her evidence; and b) give the witness an opportunity to explain the contradictions: R. v. Dexter, 2013 ONCA 744, at para. 17. Counsel is not required to put the witness on notice of every detail that is allegedly contradictory. Rather, only the “nature of the proposed contradictory evidence and its significant aspects needs to be put to the witness”: R. v. Dexter, 2013 ONCA 744, at para. 18.
o If the witness comes around and adopts the statement, stop!
o Make sure that the agreement is based on the witness’ present recollection: R. v. Kelly, 2011 ONCA 549, at para. 41.
- When should a party bring an application under section 9(2)?
- When should a party bring an application under section 9(2)?
A party seeking to challenge the evidence of their witness should first try the least
intrusive/confrontational approaches. The party should attempt the following methods prior to applying for leave to cross-examine their witness under s. 9(2) of the CEA:
a) refresh the witness’s memory; or
b) if the witness’s memory cannot be refreshed, try to get the witness to adopt their out-of-court statement. Past recollection recorded is a mechanism by which a witness may adopt a past statement.
Counsel should request a s. 9(2) voir dire as soon as it becomes evident that the witness has made a prior inconsistent statement on a material issue and will not adopt the prior statement: R. v. Scozzafava (1997), 46 O.T.C. 48 (O.C.J.), at paras. 12-14. This would typically be done during a party’s examination-in-chief of the witness. A judge may, however, grant leave to counsel to cross-examine his or her own witness on a prior inconsistent statement on re-examination in appropriate circumstances: R. v. Moore, (1984), 5 O.A.C. 51 (Ont. C.A.), at p. 24
