Canadian Criminal Evidence/Hearsay Applications

Introduction
This is a cheat sheet for making applications to admit prior statements as evidence for the truth of its contents.

The need to admit the prior statement in for the truth of its contents arises out of several scenarios:
 * the witness states they do not recall the evidence from the statement and their memory cannot be refreshed (either honestly or not);
 * the witness states that the events occurred differently from how they were stated in the statement;
 * the witness is unavailable;

The options for the Crown is to do any of the following:
 * refresh the memory of the witness with the prior statement (Coffin Application)
 * seek to admit the prior statement for the truth of its contents (KGB or Khan Application)
 * seek to cross-examine the witness on the prior statement (s. 9(2) of CEA)
 * seek to cross-examine the witness as an adverse/hostile witness (s. 9(1) of CEA)

Many times all these options are chosen. The Coffin Application is generally required before the latter options are to be considered. This is to allow the witness a chance to adopt the statement without going through the other steps. The cross-examination applications can be used to bring out evidence discrediting the reliability of the new version of events (as the case may be), or to establish the reliability and necessity of the prior statement for the purpose of the Hearsay Application.

Process Summary
In a sense the process involves a number of voir dires. The process can be done in separate parts or all in a seamless process, the latter being the preferred method. Regardless of the method, the evidence from one phase may be used to support the next phase. Effectively, the evidence of each voir dire is considered as a whole regardless of whether the defence consents or not. The court, in determining whether to grant the KGB application, may in certain cases also consider evidence hearing in the trial itself, again without consent of defence.

Coffin Application (Refreshing Memory)
Where a witness is testifying and cannot recall their anticipated evidence (whether feigned or honest) the party should attempt to refresh their memory from their prior statement. A Coffin Application is the method by which a witness's memory can be refreshed in anticipation of a Hearsay application.

Once the application is complete and the witness' memory is not refreshed, the applicant should turn to either a KGB application, if the lack of memory is believed to be feigned, or a Khan application if the memory loss is genuine. The court should make a ruling on which it is, however, where it is unclear, it is best to proceed as a KGB application. The KBG has a higher standard of evidence than a Khan application.

See R v Stewart, 1976 CanLII 202 (SCC), [1977] 2 SCR 748

Written Statement
This applies to written statements made in the course of the police taking statement as part of their investigation.

The witness should be asked about recalling the following:
 * 1) encountering the police at a specific time and place
 * 2) knowledge of the manner the police became involved
 * 3) speaking to officers
 * 4) officers names
 * 5) ID'ing officers at court
 * 6) the officers asking about what happened
 * 7) telling them some information in response
 * 8) gave a written statement between a certain period of time
 * 9) the number of pages in length
 * 10) had a chance to review it
 * 11) had a chance to make any changes needed
 * 12) never made any changes to it
 * 13) signed it on completion
 * 14) signed by officer present at court

'''Next ask the court permission to have the witness review the statement. If the judge does not allow it, then call the officer to prove the statement.'''
 * 1) confirm statement in their hand writing
 * 2) confirm their signature on each page
 * 3) confirm polices signature on page
 * 4) go line by line confirming, whether that was what was said by the witness
 * 5) confirm whether it is his statement
 * 6) confirm whether the statement refreshes their memory

if the witness denies that it is her statement, you must call the officer to prove that it was her statement.

Go back to the original question asked for which the witness could not recall
 * 1) confirm whether the statement refreshes their memory to answer the initial question

Oral Statement reduced to writing
This applies to oral statements that were reduced to writing such as in a police officer's notebook.

The witness should be asked about recalling the following:
 * 1) encountering the police at a specific time and place
 * 2) knowledge of the manner the police became involved
 * 3) speaking to officers
 * 4) officers names
 * 5) ID'ing officers at court
 * 6) the officers asking about what happened
 * 7) telling them some information in response
 * 8) gave a verbal statement
 * 9) saw the officers take note in their books
 * 10) officers give them a chance to review the statement
 * 11) officers give them a chance to correct or change the statement
 * 12) the witness signed the statement


 * Next ask the court permission to have the witness review the statement. If the judge does not allow it, then call the officer to prove the statement. **
 * 1) go line by line confirming, wehther that was what was said by the witness


 * Go back to the original question asked for which the witness could not recall
 * 1) confirm whether the statement refreshes their memory to answer the initial question

Oral Statement recorded
This applies to oral statements that was recorded such as a 911 call.

The witness should be asked about recalling the following:
 * 1) calling 911
 * 2) speaking to an operator
 * 3) being asked what the emergency was
 * 4) made a report
 * 5) asked questions and details

'''Next ask the court permission to play the recording. If the judge does not allow it, then call the 911 operator to prove the statement.'''
 * 1) ID voices recorded
 * 2) confirm the recording is complete, nothing is missing, and is accurate

Go back to the original question asked for which the witness could not recall
 * 1) confirm whether the statement refreshes their memory to answer the initial question

Khan Application
When Available
 * witness unavailable (e.g. missing or dead) -- application should be brought before the beginning of a jury trial; but any time while in Judge-alone trial.
 * witness is incompetent
 * witness is unable to recall events

Steps:
 * 1. seek consent to start voir dire and that evidence will blend with trial
 * 2. call witness to establish necessity (that the prior statement was reasonably necessary)
 * 3. call witness to establish signs of reliability (threshold)
 * 4. other side may cross-examine witness on reliability/necessity
 * 5. defence may call witnesses; crown will cross-examine
 * 6. argument on admissibility of statement

Necessity
Must show:
 * necessary to prove fact in issue
 * other direct evidence either not possible or too difficult
 * prior statement contains info that provides full and accurate account (see Khan, Smith, FWJ)
 * why the witness is not available

Examples
 * witness dead (Smith 1992 SCC)
 * witness left jurisdiction
 * witness failed to attend after being subpeonaed
 * witness has memory loss (Fullerton 1994)
 * witness has false memory loss
 * witness refuses to testify (Trudell, Green)
 * spousal privilege (Hawkins 1996 SCC)
 * witness is child
 * witness is incompetent
 * witness has disability

KGB Application
When Available?
 * When the Witness recants from a prior statement and adopts a new version of events

Steps:
 * 1. get all details from the witness' present memory
 * 2. ask how clear the memory is. if memory not clear:
 * a. refresh memory by showing prior statement (N.B. confirm author/time/place)
 * b. ask if it refreshes memory
 * c. ask for recollection again (witness will likely give some excuse why not able to remember)
 * 3. ask about circumstances of giving prior statement to give signs of reliability:
 * a. whether witness made the complaint to police
 * b. whether statement given to official/police officer
 * c. type of narrative of statement (Questions and Answer style)
 * d. whether witness knew if statement was being recorded
 * e. whether the statement was sworn
 * f. whether witness was warned of risk of lying
 * g. state of sobriety at the time of statement
 * h. emotional state at time of statement
 * i. voluntariness of giving statement

At this point the accused may be able to cross examine the witness. This point the applicant will ask the court whether to declare the witness as hostile to be cross-examined.

Cross-examination on Statement:
 * 1. establish voluntariness of statement
 * 2.