Evidence From a Deceased Witness: Hearsay Exceptions

An important piece of evidence the Crown relied on at trial was an admission Mr. Assoun was alleged to have made to Margaret Hartrick. Ms. Hartrick was a friend of the deceased. She gave statements to police in November, 1996 and August, 1998 and testified at the preliminary inquiry. Ms. Hartrick died before trial. 

Ordinarily statements to police or testimony given at the preliminary inquiry would not be admissible

Given that Ms. Hartrick was unable to testify at trial an application can be made to have someone’s prior statements and evidence entered at trial. This is known as the principled exception to the rule against hearsay. To have evidence admitted under this exception the Crown will have to show that the statements are both necessary and reliable. 

The requirements of necessity and reliability act as a "evidentiary gatekeeper". Courts have to play this gatekeeper role as this sort of evidence has the chance to be quite damaging to an accused. Remember that the witness won’t be cross-examined on their version of events. In other words, their evidence won’t be tested like that of other witnesses. So it is important that evidence isn’t just admitted whenever an application is made. Hearsay evidence is presumptively inadmissible because it is often difficult for the trier of fact (the judge or jury) to assess its truth in the absence of seeing the witness give their evidence and be cross-examined. 

In the case of a deceased witness the necessity component is pretty straightforward. The challenge usually arises with the reliability analysis. When considering the application the court will consider whether the statement meets threshold reliability. 

This determination will require the court to consider the procedure in which the statement was taken and the actual content of the statement. In terms of the procedure the court will look to see if the statement to police was taken under oath (often referred to as a KGB statement) and other potential substitutes for testing the truth and accuracy of the statement. 

In terms of the content of the statement the court will consider whether the statement is unlikely to change under cross-examination. The court will also look for the presence or absence of corroborative evidence. 

The Supreme Court of Canada in R. v. Bradshaw explained that a trial judge can only rely on corroborative evidence to establish substantive reliability if it shows, when considered as a whole and in the circumstances of the case, that the only likely explanation for the hearsay statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement. 

Under the principled exception, hearsay can exceptionally be admitted into evidence when the party tendering it demonstrates that the twin criteria of necessity and threshold reliability are met on a balance of probabilities

The law has developed significantly since Mr. Assoun’s trial and from the information available it appears doubtful that Ms. Hartrick’s statement would be admissible. It appears that there was no corroboration of her account and when the private investigator retained by the defence on appeal inquired into the timeline it quickly fell apart. 

With that evidence being ruled admissible we will next turn to how the court deals with it at trial.