The Principled Approach to Hearsay Flashcards
What is the principled approach to hearsay
● Hearsay exceptions were a highly technical/rigid set of closed categories with specific prereqs for application → criticized
● SCC moved toward principled approach for hearsay - Response to UK dissent that called for a more malleable rule against hearsay to prevent injustices. Adopted by SCC in 1970.
● To be admissible in court as proof of truth of contents it must be reasonably reliable (given in circumstances such as to give the statement a reasonable degree of trustworthiness) and reasonably necessary
● R v Khan - evidence of a child statement on crimes committed against child should be received if necessity, reliability, and subject to safeguards considered necessary by judge and considerations of weight that should be accorded.
● R v Smith - statements in phone calls made by deceased to mother admissible
Describe necessity in hearsay principled approach
● No better evidence available
● Witness not legally admitted to give testimony during trial (ex no capacity)
● Witness otherwise unavailable (deceased, fled, insane, traumatized)
● Witness recanted on the stand
● Must sometimes be diligent in attempting to procure testimony of the evidence, especially if witness is alive and in jurisdiction. Courts will look at what efforts were made. (consider letters rogatory)
Describe reliability in hearsay principled approach
● 2 Kinds: distinction btwn threshold reliability and ultimate reliability.
○ Threshold Reliability: Whether trier of law decides on a voir dire that the out of court statement satisfies the reliability requirements of principled approach so as to allow the admission as hearsay evidence
○ Ultimate Reliability: whether trier will ultimately rely on it to decide issues of case
● Factors going to reliability/trustworthiness:
○ Spontaneous?
○ Naturally?
○ WIthout suggestion?
○ Reasonable contemporaneous with events
○ Absence of motive to fabricate (ex Mr Big?)
○ Person with sound mental state
○ Person who would likely have knowledge of the acts alleged
○ Corroborating evidence?
○ Person under a duty to record the statements?
○ Made to public officials?
○ Recorded?
○ Did person know statement would be publicized?
● Other factors speaking to testability of statement (if these are met, then reliability concerns are met):
○ Did person give out of court statement under oath?
○ Was it video/audio taped?
○ Was the person subject to C.E. outside of court when giving the statement?
○ Is the person now available to be cross examined in court as to the making of the statement?
How does the principled approach relate to the old hearsay exceptions?
● Hearsay is presumptively inadmissible unless falls under exception. Traditional exceptions are presumptively in place.
● Hearsay exception can be challenged to determine if it is supported by necessity and reliability required by principled approach. Exception can be modified to bring into compliance
● Rare cases- evidence falling in an existing exception might be excluded because necessity and reliability are lacking.
● If hearsay evidence doesnt fall under an exception, might still be admitted if reliability and necessity are established in voir dire.
● NOTE: KGB criteria not actually an exception - court is just applying principled approach.
● SO - one party sets out hearsay exception, opposition counters no reliability/necessity. Prepare arguments for both!
What are letters rogatory
● Letters Rogatory are a mechanism whereby
○ Domestic court proceedings may be in progress but witness is in foreign jurisdiction and cant be compelled
○ Party may try to obtain Letters Rogatory which oblige witness to give evidence on commission in foreign jurisdiction so that party may use this evidence during domestic proceeding. (asks other country to use their laws to compel witness)
useful in proving necessity under principled approach!!
Procedure for letters rogatory
○ 1) Court party applies to court of superior jurisdiction to endorse the letters rogatory, which amounts to a request by the court of domestic jurisdiction to the court of foreign jurisdiction for assistance in obtaining the evidence of the witness.
○ 2) Ministry of Foreign Affairs in domestic jurisdiction serves the Letters Rogatory on the Minister of Foreign Affairs in the foreign jurisdiction.
○ 3) The Letters Rogatory are passed on to the court of foreign jurisdiction.
○ 4) The court of foreign jurisdiction then makes a decision as to whether or not to enforce the Letters Rogatory. The foreign court may for example deny the request because what is asked for is contrary to the laws and policies of the foreign jurisdiction.
○ 5) If the foreign court grants the request to enforce the Letters Rogatory, the prospective witness is subject to the laws of the foreign jurisdiction for compelling and summoning a witness.
○ 6) The witness then gives evidence under a commission that is conducted in the foreign jurisdiction.
○ 7) The evidence is then returned to the court of domestic jurisdiction, as well as the parties to the court proceeding.
Why does canada do letters rogatory and what do they consider?
● Canadian Jurisprudence on endorsement of outgoing Letters Rogatory or Enforcement of Letters Rogatory from Foreign Jurisdictions:
○ General Principles: Comity of nations. Courts will give effect to laws/decisions of other jurisdictions out of mutual deference and respect. Foreign requests given full force and effect unless contrary to public policy of jurisdiction in which requested, or otherwise prejudicial to the sovereignty of citizens of the jursidiction.
○ Additional factors to consider holistically:
■ Evidence sought is relevant
■ Evidence is necessary for trial and will be adduced at trial if admissible (sometimes evidence for purposes of discovery is allowed)
■ The evidence is not otherwise obtainable
■ The order sought is not contrary to public policy
■ The documents sought are identified with reasonable specificity
■ The order sought is not unduly burdensome, having in mind what the relevant witnesses would be required to do, product, were the action tried here.
Essential elements of letters rogatory
○ A statement that a request for international judicial assistance is being made in the interests of justice;
○ A brief synopsis of the case, w identification of parties and nature of the claim and relief sought
○ The type of case [e.g. civil, criminal, administrative];
○ The nature of the assistance required [compel testimony or production of evidence; service of process];
○ Name, address and other identifiers, such as corporate title, of the person abroad to be served or from whom evidence is to be compelled, documents to be served;
○ A list of questions to be asked, where applicable, generally in the form of written interrogatories;
○ A list of documents or other evidence to be produced;
○ A statement from the requesting court expressing a willingness to provide similar assistance to judicial authorities of the receiving state;
○ Statement that the requesting court or counsel is willing to reimburse the judicial authorities of the receiving state for costs incurred in executing the requesting court’s letters rogatory
What is a hague service convention and how does it compare to letters rogatory?
● Hague Service Convention
○ More streamlined service whereby a ‘judicial officer’ of the domestic jurisdiction sends a request for assistance directly to a ‘central authority’ in another jurisdiction.
■ Faster, but also depends on both jurisdictions being a party to the Convention (Canada is). Otherwise, you’ll need to use Letters Rogatory.
Why are letters rogatory important?
○ Judge will ask you for letters rogatory in determining necessity - need to have made reasonable efforts.
