03
November
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hearsay
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Hearsay Evidence and Inadmissibility
R v Threefingers, 2016 ABCA 225 is a good case on the inadmissibility of Hearsay evidence. This case illustrates the difficulty courts have in admitting hearsay evidence if it does not meet the requirements under the Modern Principled Regime. Live questions of reliability will always give the accused a fighting chance in criminal proceedings.
Background
This is a sexual assault involving a complainant with the mental age of 14 years. After the alleged sexual assault, the complainant made a video-taped statement recounting the details of the sexual assault. The trial judge admitted the video-taped statement for the truth of its contents even though there were serious question marks about the reliability of the statement. The trial judge also admitted expert evidence where there were serious question marks over the credentials of the expert.
Analysis
The Court of Appeal notes that hearsay admissibility is a question of law reviewable on a standard of correctness. For the video-taped statement, the Court finds that while necessity was not an issue, the statement failed to meet threshold reliability, noting that
A) Procedural reliability was absent because the Complainant did not remember the videotaped statement or the alleged incident
B) Substantive reliability was absent because of a number of factors
i. There was no oath or caution given to the Complainant
ii. The Complainant did not wish to be at the police station, there was an indication that her mother was directing her statement including giving evidence at some points, the Complainant was high both at the time of the incident and during the statement;
iii. The Complainant suffered from a mental disorder and a problematic perception of reality, and many things described by the complainant were not backed by the evidence
The Court of Appeal also finds that the Expert Evidence was admitted in error, because of the inappropriate credentials of the expert.
The Court quashes the conviction and orders a new trial.
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Hearsay and Reliability in Sexual Assault Cases
R. v. B.P. [2016] O.J. No. 3550 2016 ONSC 4244: Reliability
This is a case which addresses addresses issues of hearsay and reliability in a sexual assault scenario.
Background
In this case the 9 year victim suffered from a “number of disabilities, including autism, anxiety disorder, seizure disorder and a syndrome known as Prader-Willi, which affects his hypothalamus.” The victim did not recall the incident in question, and his mother lead hearsay evidence against the accused, testifying that her son had told him of the alleged incident.
Analysis
The Ontario Superior Court of Justice found that the Trial Judge improperly admitted hearsay evidence in this case. There were problems with both procedural reliability and substantive reliability. The victim was not available for cross-examination, and the statement was not recorded in any way. As well, the surrounding circumstances indicated that there was a degree of unreliability about the statement.
The victim was suggestible and unreliable. As well, the victim’s mother was unreliable and her lack of credibility affected the reliability of the hearsay statement. The trial judge did not consider these important aspects regarding the hearsay statement, and improperly admitted it.
The Court also finds that the trial judge improperly accepted the evidence of the complainant and rejected that of the accused, shifting the burden of proof, and committing a basic error.