Canadian Criminal Evidence/Hearsay/Principled Exception

General Principle
The principled approach is founded on the premise that if a statement is necessary to a hearing, and it is reliable , it should be admitted even if it is hearsay.

When considering a prior inconsistent statement the court must begin by presuming that the statement is inadmissible for the truth of its contents unless it has been established there is sufficient indicia of trustworthiness.

Before hearsay evidence can be admissible under the principled exception it must be relevant and has been determined whether it already fits in a traditional exception.

Even when the hearsay evidence is reliable and necessary, there is still a discretionary ability to exclude the evidence where the prejudicial effect outweighs the probative value.

Procedure
R. v. Woodard, 2009 MBCA 42 summarized procedure for the admission of evidence under the principled approach to hearsay as follows at 46:

A KGB application is typically one made by the Crown, but may also be made by the defence. The defence is permitted to apply to put a previous inconsistent statement into evidence for the truth of its contents.

Before a KGB application can be undertaken the court must first be satisfied on a threshold that the prior inconsistent statement is the sole evidence of the witness and that the statement is consistent with the evidence in court.

Necessary
Necessity must be in relation to a particular goal. The court should consider whether that goal can be achieved by other evidence that would otherwise be more reliable. If the exists other avenues of proving the fact sought then the exception will not apply.

In the context of a recanting witness, necessity concerns the unavailability of the statement and not the witness. It generally always made out when there is a recantation.

Dead witnesses
Death of the witness is typically sufficient to establish necessity so long as the witness was the only source of information contained within the statement.

Witness refuses to testify
A witness who refuses to testify when all efforts to obtain that testimony have been taken to no avail will typically satisfy the requirement of necessity. There is no onus on the Crown to prove why the complainant failed to testify.

Child witnesses
Where the experience testifying may be so traumatic at to prevent a child from testifying, the requirement of necessity will be satisfied.

While in some limited cases the court may have the child testify within the voir dire to support the reliability of the statement. More often, the statement will be admitted without oral evidence and the lack of cross examination will go to the weight of the prior statement.

Reliability
As always, the focus of analysis is to be on the hearsay dangers. The primary danger of concern is the inability to cross-examine. The court must be satisfied that the statement is sufficiently reliable to be considered as evidence. The judge must determine whether the statement shows sufficient reliability to afford a satisfactory basis for evaluating the truth of the statement. The criteria of reliability deals with threshold reliability, not ultimate reliability to establish some fact.

There are two manners in which relability can be established: 1) by detailing the circumstances in which the statement was taken; or 2) “by showing that, in all of the circumstances, the ultimate trier of fact will be in a position to sufficiently assess the worth of the statement.

Where the circumstances of the statement "substantially negates" the possibility that the declarant was untruthful or mistaken, then the statement is reliable.

Factors
Factors include:
 * 1) solemnity of the occasion
 * 2) the declarant’s adverse interest
 * 3) the declarant had particular means of knowledge of events described
 * 4) the statement distinguishes between first and second hand knowledge
 * 5) the statement was officially recorded and preserved
 * 6) the absence of a reason and/or motive to fabricate the statement (non-fabrication)
 * 7) the timing of the statement in relation to the event spoken of (contemporaneity/remoteness)
 * 8) the demeanour of the declarant at the time of the making of the statement (demeanour)
 * 9) the spontaneity of the statement (spontaneity)
 * 10) the relationship between the declarant and the witness (relationship)
 * 11) the detail given in the statement (detail);
 * 12) whether the declarant could be mistaken (mistake);
 * 13) motive of the declarant (motive)
 * 14) conduct of declarant
 * 15) whether the statement was recorded and
 * 16) “other”, including an “accurate record” - because it is clear from the cases that the list of factors is not closed and others may be added as appropriate to the particular circumstance.

Factors not to be considered in determining threshold admissibility:
 * 1) reliability or credibility of the declarant;
 * 2) general reputation of the declarant for truthfulness;
 * 3) prior or subsequent statements, consistent or not; and


 * 1) **In particular, the bar that Starr erected on the use of corroborative evidence in the threshold reliability assessment no longer applies. Instead of categorizing reliability factors into discreet, non-mutually exclusive threshold and ultimate stages, courts should now "adopt a more functional approach... and focus on the particular dangers raised by the hearsay evidence sought to be introduced and on those attributes or circumstances relied upon by the proponent to overcome those dangers".[4] In effect, trial judges may now consider evidence going beyond the circumstances under which the statement was made at the threshold reliability stage, which includes corroborative and/or conflicting evidence.

A videotaped statement can often be admitted where the declarant is available for cross-examination as there are often sufficient tools to assess the weight of the statement.

Presence of an Oath, Affirmation or Warning
Where there is no oath, other evidence may substitute for it. This may include evidence from which it can be inferred from when the statement was made, the apparent solemnity of the location and occasion of the statement, an understanding of the importance to tell the truth.

Opportunity for Cross-Examination
The opportunity for Cross-examination "alone provides significant indications of reliability" and so could provide "an adequate assurance of threshold reliability to allow substantive admission of prior inconsistent statements"

The effectiveness of cross-examination as a sign of reliability "depends on the nature of the recantation of the witness." So where there is a mere denial or absence of memory of the prior statement, cross-examination would have less importance.

Corroboration
It is important to remember that "repeating a story to others doesn't make it reliable".

Special Types of Witnesses
Elderly or infirm witnesses are classes of witnesses who present risk of being deceased by the time a trial comes about.

For both of them their reliability can be established with evidence of their fitness at the time the statement was given, such as:
 * medical evidence of any psychological reports regarding capacity
 * any prescriptions being taken as well as their effect upon their capacity.