 |
| Patrick Ducharme |
The law of evidence plays a fundamental role in our trials: it determines the admissibility of all evidence by identifying the information the triers of fact are allowed to consider. The Supreme Court of Canada in R. v. Jarvis1 raised the relevancy of evidence to the level of a protected Charter right by concluding that it is a fundamental principle of Justice that relevant evidence should be available to the trier of fact in the search for the truth. It is perhaps for this reason that the Supreme Court of Canada has adopted a purposive approach to the admissibility of evidence. In doing so, the court has moved away from the certainty of categories of admissible evidence to rules that permit discretion as to admissibility based upon a “principled approach” to admissibility.
For example, the courts principled approach has dramatically affected the admissibility of hearsay evidence. Hearsay evidence remains presumptively inadmissible. However, hearsay evidence may be admissible under an existing hearsay exception or may be admitted on a case-by-case basis according to the principles of necessity and reliability. Necessity and reliability are now the guiding principles for the admissibility of all hearsay. Even the existing hearsay exceptions must comply with these principles.
The necessity requirement is satisfied where it is reasonably necessary to present the hearsay evidence in order to obtain a person’s version of events. Reliability refers to “threshold reliability”, that is, a trial Judge determines whether the particular hearsay statements exhibit sufficient indicia of reliability that they afford the trier of fact a satisfactory basis for evaluating the truth of any particular statement.
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure Volume 2, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
Subscribe to Patrick Ducharme's Youtube Channel