B. R. v. Starr and the Modified Common Law Hearsay Exceptions
[27] The Supreme Court of Canada has developed a functional and principled approach to hearsay analysis. This involves the consideration of the necessity and reliability of the hearsay evidence, rather than inflexible reliance on traditional, categorical exceptions. At the same time, the traditional hearsay exceptions like the spontaneous utterance exception remain. Importantly, though, they may need to be modified on the basis of the principles of necessity and reliability.
[28] In R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, Iacobucci J. set out the framework to be applied in a hearsay analysis:
(a) Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions to the hearsay rule remain presumptively in place.
(b) A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by the principled approach. The exception can be modified as necessary to bring it into compliance.
(c) In "rare cases", evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case.
(d) If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity are established on a voir dire.
See also R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358, at para. 15.
[29] In my view, the traditional hearsay exception of spontaneous utterances has focused mainly on factors relevant to threshold reliability. Judges have paid little attention to whether the hearsay utterance is necessary. When the declarant is dead or otherwise unavailable to testify, then the necessity requirement is easily met. However, when as here, the declarant is available to testify, a more serious issue arises.
[30] Let me quickly acknowledge that the traditional hearsay exception of spontaneous utterances did not require that the declarant be unavailable. Even when a witness is in court and adopts the truth of the prior spontaneous utterance, the prior out-of-court statement still remains hearsay as the purpose for which the evidence is adduced is for the truth of its content and there is an absence of a contemporaneous opportunity to cross-examine the declarant: see R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 35.
[31] When dealing with the spontaneous utterance hearsay exception, judges have generally presumed the principle of necessity. James H. Chadbourn, rev, Wigmore on Evidence, (Canada: Little, Brown & Co., 1976) at s. 1748 is a leading proponent on why necessity can be presumed:
Necessity is foregone in cases of spontaneous statements because of…the superior trustworthiness of his extrajudicial statements as creating a necessity or at least a desirability of resorting to them for unbiased testimony. It is this last reason that suffices equally for the present exception. The extrajudicial assertion being better than is likely to be obtained from the same person upon the stand, a necessity or expediency arises for resorting to it….It follows that the death, absence, or other unavailability of the declarant need never be shown under this exception-a proposition never disputed.
[32] Marc Rosenberg (before his appointment to the Ontario Court of Appeal) wrote in “B. (K.G). Necessity and Reliability: the new Pigeon-Holes” (1993) 19 C.R. (4th) 69 at pp. 73-74:
As Wigmore explains, while it is a precondition of most hearsay exceptions that the hearsay evidence be necessary because of the unavailability of the declarant, the necessity principle is also satisfied where, although the declarant is available, the statement sought to be admitted “may be such that we cannot expect, again, or at this time to get evidence of the same value from the same or other sources”. The spontaneous utterance exception is one example. While the declarant may be available, the “superior trustworthiness” of the spontaneous utterance creates a necessity or desirability of resorting to the “unbiased testimony”. Put another way, while the declarant is available, the best evidence is not his or her testimony months or years later but the utterance made under the stress of the event which is a spontaneous and sincere response produced by the external shock.
[33] Paciocco makes the same point in his article at pp. 192-193:
If the declarant is testifying in the case, how is it “necessary” to admit hearsay in order to get the declarant's version of events before the court? In fact, even though we typically define “necessity” by asking whether hearsay is required to get the declarant's version of events before the court, the concept is actually more subtle than this. To understand how and why, consider the role that the “necessity” requirement to the hearsay rule performs.
Whereas the “reliability” component of the basic hearsay principles exists to ensure that hearsay is not admitted unless it is reasonable to rely upon it, the “necessity” component performs a “best evidence” function. It exists to ensure that if it is possible to present “better evidence” in the form of in-court testimony, parties should not be permitted to resort to hearsay proof. In-court testimony is generally “better” because it can be more readily evaluated for its truth. As indicated, it is made under oath, the demeanour of the witness can be observed by the decision maker, and cross-examination will produce the data required for the rational evaluation of the evidence to see if it should be believed. There are times, however, when hearsay evidence is expressed under circumstances that yield tremendously helpful criteria for evaluating the reliability or credibility of a factual claim. There are therefore cases where legislators and the common law created hearsay exceptions that do not have necessity components. The most important examples are the business records exceptions and the res gestae exceptions.
…
The res gestae exceptions do not have a necessity requirement either, arguably for similar reasons. In-court testimony may not be better evidence than “excited utterances” because in-court testimony is not uttered in the pressure of the moment before an opportunity to concoct has arisen, or during an event with a factual setting that will permit the accuracy of the statement to be evaluated in context. [Citations omitted.]
[34] I wish to stay a moment with the Paciocco article. Although Paciocco argues that admission of prior consistent statements as hearsay is benign provided that restricted admissibility concerns are appropriately addressed by the trier of fact, he goes on and assesses what actual added value is gained by this hearsay exception. He comes to the conclusion that it is really not the hearsay portion of the statement which makes the evidence superior. Rather it is the circumstances in which the statement is made. I will quote from that article where he makes this compelling argument:
While the hearsay claim, viewed in isolation, may prove to be redundant where the witness makes the same factual claim during in-court testimony, there may be added value in admitting the prior consistent admissible hearsay and using its indicia of reliability to assist in evaluating the accuracy of the factual claim the witness is advancing. To be clear, there is no added value in the fact that the same statement was repeated; the prohibited inference would be offended by reasoning in this way. And there is no added value in the fact that two items of admissible evidence point in the same direction; it would offend the rule against using prior consistent statements as corroborative to accept this. The added value, if any, comes from the context and circumstances in which the admissible hearsay statement was made; for example, the fact that the statement was recorded promptly as a matter of duty in an important business record by someone gives additional reasons for rationally choosing to believe the witness when the witness makes the same claim while testifying. Similarly, the fact that the witness made the same claim by way of an excited utterance in the heat of the moment and before any opportunity to concoct could reasonably have arisen provides additional reasons for rationally choosing to believe the witness's in-court testimony containing the same utterance.
In sum, when prior consistent statements are proved as admissible hearsay evidence where the declarant offers the same testimony in court, it is not the “hearsay part” that actually adds weight to the scales. That hearsay claim is redundant to the claim made in the testimony. What adds weight, if anything, is the “declaration part” of the statement block. While there is no weight in the simple fact of repetition and no independent corroboration in repetition, the circumstances in which the hearsay statement was made--its indicia of reliability-- can and should add weight to the correlative in-court testimony. [Citations omitted.]
[35] As I read this passage, the probative value comes mainly from the statement as narrative as circumstantial evidence rather than from the truth of its content. This assessment of the value of a statement under this hearsay exception as argued by Paciocco was confirmed by the Ontario Court of Appeal in R. v. Mackenzie, 2015 ONCA 93, 19 C.R. (7th) 150. See also R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520 at para. 49, citing the article by Paciocco for this interpretation of Mackenzie. In my view, if this is the true reason why the hearsay evidence is superior, or, in the language of the principled approach, “necessary”, there is no persuasive reason why the statement should be admitted for the truth of its contents when the declarant testifies in court. Its admission as circumstantial evidence would suffice.
[36] I am in agreement with the authors of Hill et al., McWilliams’ Canadian Criminal Evidence, loose-leaf (consulted on January 30, 2018), (Aurora, Ont.: Thomas Reuters, 2010), ch. 7 at p. 80, where they said the following about a potential conflict between the spontaneous exclamation exception and the principled approach:
The more problematic (but not fatal) aspect of the exception is necessity. There is no requirement that the declarant not be available. Indeed, the declarant may even testify and yet have their out-of-court spontaneous exclamation admitted for its truth. While one might concede the superior “sincerity” value of this evidence, it does not follow that it has any significant advantage over the in-court testimony of the witness when issues related to perception and narration are factored into the assessment. Where the witness testifies and relates the same content as the out-of-court spontaneous declaration one might question whether in every case (or even in most cases) the out-of-court statement has sufficient “plus-value” to render its admission “necessary” even on a more relaxed measure.
[37] In some instances, an obvious “plus-value” to the spontaneous exclamation even when the declarant testifies will exist to render its admission necessary. An example is when the witness does not recall or can only partially recall the out-of-court statement made. Another example is when there is added probative weight due to a heightened contemporaneous emotional reaction attached to the statement. The latter is exemplified by the 911 audio recordings that have been admitted under this categorical exception.
[38] However, not every case is so obvious. It could be argued that in those cases, the onus should be on the party objecting to its admission to satisfy the judge that though the statement falls within the categorical exception to the hearsay rule, it should not be admitted because necessity and reliability is lacking – in other words, that this is one of the “rare” cases referred to in the third part of the Starr framework. In my opinion, the better approach is to modify the common law exception when the declarant is available to testify in court. I say this for the following reasons:
1. The party who wishes the admission of hearsay is in a better position to be aware of the nature of the witness’s evidence and to call evidence to establish its necessity.
2. A purposive and principled analysis of the specific facts of each case will lead to better decisions. The attraction of the principled approach is that it gives primacy to coherence and reason over ossified, historical legal rules. In this case, I either analyze the issue of necessity taking into account all relevant considerations under the principled approach, or I just accept that the rationales noted above have application to this case without any analysis or opportunity for the parties to address it. I do not believe the spontaneous utterance exception is so carefully defined that necessity will always be met.
3. This rule will enhance judicial accountability. Rather than just assuming necessity unless shown otherwise, adapting the common law rule in cases where the declarant is available to testify will make transparent why this evidence is being admitted for its truth.
4. This rule will help avoid the danger of misuse. Prior consistent statements cannot be used to corroborate the complainant since they are not independent. When the declarant testifies in a consistent way to the prior statement, the hearsay aspect of the statement becomes redundant, although the declaration portion of the statement may have value. However, once admitted for its truth, there is a danger that the trier may see probative value in the mere fact of its repetition.
5. This rule will improve trial efficiency. If the witness testifies to the same thing in court, there is no benefit to hearing it again: see Paciocco at p. 186.
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