Canadian Criminal Evidence/Hearsay Applications

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Introduction[edit]

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[edit]

Scenario "I can't remember what happened" "I wasn't accurate in my prior statement" Witness is Absent
When to invoke
  1. The witness states that they cannot recall events that are recorded in a prior statement
  1. The witness states that their prior statement was false or inaccurate from events they can testify to in court
  1. The witness is missing or otherwise unavailable to testify
Step 0: Before Court
  1. Have copies of transcript or written statement as well as the audio / video recording
  2. Have the witness review the written statement before court
Step 1: Est. Type of Hearsay Issue
  1. Exhaust the memory of the witness

(Coffin Application)

  1. Establish a prior occasion where they talked to police about the case
  2. Establish when/where/how of the prior statement
  3. Allow the witness to read the transcript of the statement to refresh the memory (This is best done before court)
  4. Confirm that the statement is accurate in recording the questions asked and answers given
  1. Establish new version of events that are different from the original statement
  2. Establish a prior occasion where they talked to police about the case
  3. Establish when/where/how of the prior statement
  4. Allow the witness to read the transcript of the statement to refresh the memory (This is best done before court)
  5. Confirm that the statement is accurate in recording the questions asked and answers given
  1. Establish that a witness who gave a statement to the police is not present at court (all evidence coming from the relevant peace officer)
  2. Establish a prior occasion where the missing witness talked to police about the case
  3. Establish when/where/how of the prior statement
  4. Allow the witness to read the transcript of the statement to refresh the memory (This is best done before court)
  5. Confirm that the statement is accurate in recording the questions asked and answers given
Step 2: Est. Inconsistency

(9(2) Application)

  1. Crown should have the witness and jury excused for beginning of voir dire
  2. Crown may have to call additional evidence to prove the prior statement, if not already established by the witness, defence can cross-examine on creation of statement
  3. Crown indicates that in comparing the statement to the current testimony, there may be an inconsistency
  4. Crown proceeds with 9(2) Application
    1. Crown shows transcript to the judge - marked as exhibit
    2. Crown begins voir dire, asks for consent to having V/D evidence apply to trial
    3. Judge hears submissions from both sides on whether there is an inconsistency
  5. Factors in argument include: i) the level of detail which is not remembered; ii) whether any omissions are significant in the context iii) the materiality of the inconsistency
  6. The judge makes a ruling allowing cross-examination on the prior statement
N/A
Step 3: Impeachment on Statement

(only permitted if the Judge permits cross-examination)

  1. If not already, the Jury should be excused for the duration of the voir dire
  2. The witness is recalled
  3. witness is cross examined on circ. of statement, personal circumstances at the time, voluntariness of statement, importance of statement, consequences of a false statement
  4. Impeach witness: confirm current testimony, confront with prior statement, give credit to prior statement
Same
N/A
Step 4: Attack Overall Credibility

(9(1) Application)

  1. request judge to declare witness as Hostile
  2. reasons will be based on the evidence established in impeachment as well as demeanor evidence
  3. if judge declares witness hostile, counsel may cross-examine at large
Same
N/A
Step 5: Hearsay Application
  1. jury should be excused if not already
  2. Crown should have the witness and jury excused for beginning of voir dire
  3. Crown may have to call additional evidence to prove the prior statement, if not already established by the witness, defence can cross-examine on creation of statement
  4. Crown should call evidence supporting necessity and reliability of the statement
  5. Crown may be able to rely on evidence heard in 9(2) application and subsequent cross-examination to establish both necessity and reliability of the prior statement.
  6. Crown argument includes: i) direct evidence either not possible or too difficult; ii) prior statement contains information that provides full and accurate account
  1. Crown may be able to rely on evidence heard in 9(2) application and subsequent cross-examination to establish both necessity and reliability of the prior statement.
  2. Crown argument includes: i) direct evidence either not possible or too difficult; ii) prior statement contains information that provides full and accurate account
  1. Establish that the witness was searched for diligently and was not found or was reasonably believed to be unavailable due to death, incapacity, or active avoidance
  2. Crown may also rely on evidence of officer testifying to the making of the statement / may want to call any other witnesses who can testify to the circumstances of the taking of the statement to establish voluntariness, presence of any pressures, emotional and physical state, etc.
  3. Crown argument includes: i) direct evidence either not possible or too difficult; ii) prior statement contains information that provides full and accurate account

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.[1] 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.[2]

  1. R. v. H. (S.) (1998), 14 C.R. (5th) 80, 37 W.C.B. (2d) 362 (Ont. Prov. Div.) at para. 14 - 22
  2. H(S) at para. 20

Coffin Application (Refreshing Memory)[edit]

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[edit]

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 statment, 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[edit]

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[edit]

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[edit]

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[edit]

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 [1]
  • witness refuses to testify (Trudell, Green)
  • spousal privilege (Hawkins 1996 SCC)
  • witness is child
  • witness is incompetent
  • witness has disability

KGB Application[edit]

When Available?

  • When the Witness recants from a prior statment 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 statment (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.

References[edit]

  1. See: R. v. Conway, (1997), 121 CCC (3d) 397 at 410 (Ont. C.A.) [1]
    R. v. Savoy, [2000] B.C.J. No. 551 (B.C.S.C.)
    R. v. Diu, (2000), 144 C.C.C. (3d) 481 (Ont. C.A.)[2]
    R. v. Tat (1997), 117 C.C.C. (3d) 481 (Ont. C.A.)[3]

See also[edit]