Barrister and Solicitor
Legal Writing and Research
Evidence - Hearsay - Basics
Evidence - Prior Consistent Statements - Basics
Evidence - Opinion - Basics
R v M.C. (Ont CA, 2014)
In this very useful case the Court of Appeal took the oppourtunity to set out basic step-by-step principles applicable to several evidence rules, including: hearsay, prior consistent statements and opinion evidence.
On the hearsay rule the court stated:
The Hearsay RuleOn the rules respecting prior consistent statements the court stated:
 Like admissibility, hearsay is not an inherent characteristic of an item of evidence: R. v. Baldree, 2013 SCC 35 (CanLII), 2013 SCC 35,  2 S.C.R. 520, at paras. 30 and 36. The defining features of hearsay are two-fold:
i. the statement is adduced to prove the truth of what was said; andBaldree, at para. 30; and R. v. Khelawon, 2006 SCC 57 (CanLII), 2006 SCC 57,  2 S.C.R. 787, at para. 56. The touchstone for the admissibility of evidence that is said to be hearsay is the purpose for which the evidence is adduced. Evidence is hearsay – and presumptively inadmissible – if it is offered to prove the truth of its contents: Baldree, at para. 36; and Khelawon, at para. 36.
ii. the absence of a contemporaneous opportunity to cross-examine the declarant.
 The typical hearsay situation involves:
• a declarant (who does not testify); The hearsay rule applies equally to out-of-court statements made by a witness who does testify in the proceedings when they are offered as proof of the truth of their contents: Khelawon, at para. 37; R. v. B. (K.G.), 1993 CanLII 116 (SCC),  1 S.C.R. 740, at pp. 763-764; and R. v. Starr, 2000 SCC 40 (CanLII), 2000 SCC 40,  2 S.C.R. 144, at para. 158. The hearsay issue emerges in these cases when the witness does not repeat or adopt the information contained in the out-of-court statement and the proponent tenders the statement for the truth of its contents: Khelawon, at para. 38.
• a recipient (who does testify);
• a statement (that is offered in evidence); and
• a purpose (proof of the truth of the contents of the statement).
 The exclusionary effect of the hearsay rule is not absolute. Hearsay evidence may be admitted under the traditional exceptions, which remain presumptively valid but subject to challenge on the basis of lack of necessity or reliability: Khelawon, at para. 42; R. v. Mapara, 2005 SCC 23 (CanLII), 2005 SCC 23,  1 S.C.R. 358, at para. 15. Hearsay evidence may also be admitted if the proponent establishes the indicia of necessity and reliability under the principled exception: Khelawon, at para. 42; and Mapara, at para. 15.
 When the hearsay rule is summoned as a basis upon which evidence should be excluded, the first inquiry should be whether the proposed evidence is hearsay: Khelawon, at para. 56. The central focus of this inquiry should be on the purpose for which the statement is being adduced. It is only where that purpose is to prove the truth of the contents of the statement that the hearsay rule is engaged and refuge must be sought under a traditional or principled exception for the evidence to be admitted.
 A traditional hearsay exception permits the introduction of evidence of spontaneous statements about a declarant’s current physical condition, mental state or sensory impression, as well as excited utterances. Necessity is based on expediency since no other equally satisfactory source for the evidence exists either from the declarant or elsewhere. Reliability is rooted in the spontaneous origin of the statement before there is time for concoction.
 Under the principled exception, the necessity requirement may be met where the declarant is unable (or unwilling) to provide a full and frank account of the relevant events, including the ability to recall significant details. The reliability requirement may be satisfied by:
i. compliance with the indicia of B. (K.G.);See, R. v. Youvarajah, 2013 SCC 41 (CanLII), 2013 SCC 41, at para. 30.
ii. the presence of adequate substitutes for testing truth and accuracy (procedural reliability); or
iii. sufficient circumstantial guarantees of reliability or an inherent trustworthiness (substantive reliability).
 Where the hearsay rule is engaged, the prior statement is presumptively inadmissible. Whether the exception invoked to justify admission of the hearsay is traditional or principled, the conditions precedent or indicia are established on a voir dire: Mapara, at para. 15.
The Prior Consistent Statement RulesRegarding opinion evidence the court stated:
 A second group of rules – the prior consistent statement rules – also has a say in the admissibility of the complainant’s utterances during the seizure-like episode. Like the hearsay rule, these rules are exclusionary, either restricting or prohibiting reception of evidence of declarations made by witnesses prior to trial consistent with their in-court testimony at trial: R. v. Stirling, 2008 SCC 10 (CanLII), 2008 SCC 10,  1 S.C.R. 272, at para. 5.
 Prior consistent statements are an amalgam of two elements – a hearsay element and a declaration element: Paciocco, The Perils and Potential of Prior Consistent Statements: Let’s Get it Right (2013), 17 Can. Crim. L. Rev. 181, at p. 184. The hearsay rule takes care of the hearsay element. The prior consistent statement rules generally exclude the declaration element. Their rationale for doing so is that prior consistent statements lack probative value: Stirling, at para. 5.
 Like other exclusionary rules, however, the prior consistent statement rules have exceptions. And as with other exclusionary rules, the exceptions to the prior consistent statement rules tend to exist where the purposes that underpin the general exclusionary rule would not be served by excluding the evidence: Paciocco, at p. 187. Typically, the exceptions permit introduction of the prior consistent statement where proof of it is relevant without an inference of credibility enhancement because the witness said the same thing previously: R. v. T. (W.P.) 1993 CanLII 3427 (ON CA), (1993), 83 C.C.C. (3d) 5 (Ont. C.A.), at p. 36.
 Where prior consistent statements are admitted by exception, the statements tend to be admissible for limited or restricted purposes. Sometimes, the hearsay part is admitted. Other times, however, the declaration part comes in. At all events, the exceptions are rules of limited or restricted admissibility.
 Among the exceptions to the general exclusionary rule for prior consistent statements are statements admitted as:
i. circumstantial evidence; Where prior consistent statements are admitted as circumstantial evidence, the statement is not received as evidence of the truth of its contents, rather only to establish that the statement was made. That the statement was made may afford circumstantial evidence of some fact of importance in the proceeding, as for example the declarant’s state of mind: R. v. Edgar, 2010 ONCA 529 (CanLII), 2010 ONCA 529, 260 C.C.C. (3d) 1. It is perhaps unnecessary to add that where the basis upon which the prior statement is admitted is that it affords circumstantial evidence of the declarant’s state of mind, that state of mind must itself be relevant in the proceedings: R. v. Mathisen, 2008 ONCA 747 (CanLII), 2008 ONCA 747, 239 C.C.C. (3d) 63, at para. 104.
ii. narrative; and
iii. narrative as circumstantial evidence.
 Within limits, prior consistent statements that are necessary to unfold the “narrative” of a case and make material events comprehensible may be admitted in evidence. This exception permits proof of how a complaint got before the court, even though how it did is not a material fact that will assist the trier of fact in evaluating the adequacy of the Crown’s proof of guilt, or in determining whether a defence, justification or excuse raises a reasonable doubt. The admission of narrative permits the decision-maker to understand the “chronological cohesion” of the case: R. v. F. (J.E.) (1993), 85 C.C.C. 457 (Ont. C.A.), at p. 474.
 Evidence of prior consistent statements admitted under this exception is not evidence that can be used to prove the truth of what was said. Nor can the prior statements sponsor an inference that makes the case for the party adducing the statement more compelling. The prior statement is admitted to help the trier the fact understand the case as a whole: R. v. R. (A.E.) 2001 CanLII 11579 (ON CA), (2001), 156 C.C.C. (3d) 335 (Ont. C.A.), at para 15.
 Sometimes, a prior consistent statement admitted as narrative may be of service to the trier of fact in the assessment of the truthfulness or reliability of the declarant: F. (J.E.), at p. 476; R. v. Dinardo, 2008 SCC 24 (CanLII), 2008 SCC 24,  1 S.C.R. 788, at para. 39; and R. v. Evans, 1993 CanLII 102 (SCC),  2 S.C.R. 629, at para. 32.
The Opinion Rule
 The law of evidence distinguishes between fact and opinion. The distinction seems more and ultimately one of convenience rather than of objective reality. All sensory data is mediated by our powers of perception, assimilation and expression. But the distinction remains and is expressed in the rule that generally, but not universally, excludes evidence of opinion.
 Among the exceptions to the opinion rule are the opinions of experts. Duly qualified experts may testify about subjects that are within their field of expertise, logically relevant to a material issue in the proceedings, and outside the experience and knowledge of the trier of fact: Mohan, at p. 20.
 Experts combine information accumulated from their own work and experience, marry it with evidence adduced through exhibits, admissions and the testimony of other witnesses in the proceedings, and express an opinion about a factual inference that should be drawn from the accumulated materials: Abbey, at para. 71. These opinions are evaluated by the trier of fact, like any other evidence admitted in the proceedings, in determining whether the allegations contained in the indictment have been proven beyond a reasonable doubt.
 The factual premise or construct to which the expert applies his or her expertise must be established, however, by evidence that is otherwise properly admissible in the proceedings. Mere reliance by the expert on a state of facts as the basis for his or her opinion does not amount to evidence much less proof of those facts. For example, a psychiatrist proffers an opinion about criminal responsibility based on an account of events provided to him or her by an accused. The account relied upon must be established by other admissible evidence: R. v. Abbey, 1982 CanLII 25 (SCC),  2 S.C.R. 24, at p. 46 (Abbey ’82); R. v. Boucher, 2005 SCC 72 (CanLII), 2005 SCC 72,  3 S.C.R. 499, at para. 31; and R. v. D. (D.), 2000 SCC 43 (CanLII), 2000 SCC 43,  2 S.C.R. 275, at para. 55. Where the factual premise of the expert’s opinion is not established by otherwise admissible evidence, the opinion is entitled to less, in some cases, to no weight: Abbey ’82, at p. 46; and R. v. Lavallee, 1990 CanLII 95 (SCC),  1 S.C.R. 852, at p. 893.
 Deciding the admissibility of expert opinion evidence involves two steps. The first requires a determination of whether the conditions precedent to admissibility have been met. The second, only undertaken on satisfaction of the first, consists of a cost-benefit analysis that asks whether the benefits of receiving the evidence to a correct decision exceed the costs to the litigation process of admitting the evidence: Abbey, at para. 76.
 The criteria applicable to the first step in the admissibility inquiry are:
i. relevance;Mohan, at p. 20; and Abbey, at paras. 75 and 80.
iii. absence of an exclusionary rule; and
iv. a properly qualified expert.
 Among the Mohan criteria, two are of particular importance in this case: the absence of an exclusionary rule, and a properly qualified expert.
 The absence of an exclusionary rule refers to an exclusionary rule other than the opinion rule itself: Abbey, at para. 80. For example, expert opinion evidence of an accused’s disposition must not contravene the bad character rule.
 Whether a proposed witness is a properly qualified expert about subject-matter that is properly the subject of expert opinion evidence is determined on a voir dire after counsel proffering the evidence has defined the nature and scope of the proposed opinion: Abbey, at paras. 62-63; R. v. Marquard, 1993 CanLII 37 (SCC),  4 S.C.R. 223, at pp. 242-244; and R. v. McIntosh 1997 CanLII 3862 (ON CA), (1997), 35 O.R. (3d) 97 (C.A.), at p. 104. The trial judge’s task extends beyond deciding whether the proposed expert is qualified to proffer an opinion. The judge should also determine the nature and scope of the expert evidence and ensure that the expert’s reach does not exceed his or her grasp or extend beyond boundaries established by the trial judge: Abbey, at para. 62; R. v. Sekhon, 2014 SCC 15 (CanLII), 2014 SCC 15, at paras. 46-47; and Marquard, at pp. 242-244.
 An expert may refer to and be cross-examined upon authoritative works in the field. But without express adoption of the content by the expert, the opinions expressed in the works cannot become expert evidence for the trier of fact to consider in reaching their decision: Marquard, at p. 251. A review, even an extensive review by an expert of literature in a related field does not, without more, permit the expert to proffer an opinion on a subject outside the area of the expert’s field of expertise: Mathisen, at para. 126.
 Evidence that meets the Mohan criteria will not necessarily be received and available for consideration by the trier of fact. At the second stage, the trial judge exercises a “gatekeeper” function. The judge decides whether the expert opinion evidence is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to that same process that may ensue from the introduction of that very evidence: Abbey, at para. 76. It is only where the benefits gained by the introduction of the evidence predominate over the costs associated with its introduction that the evidence will be admitted.
 To determine the “benefits” associated with the introduction of expert opinion evidence, the judge considers the probative value of the evidence, the significance of and the issue to which the evidence is relevant. Potential probative value includes an assessment of the reliability of the evidence, not merely of its subject-matter, but also the expert’s methodology, expertise and objectivity: Abbey, at para. 87.
 On the “cost” side, the trial judge considers the consumption of time, prejudice and confusion. The trier of fact may not be adequately equipped to effectively and critically assess the evidence. The underlying material may be complex, the witness’ jargon impenetrable, and the evidence resistant to effective cross-examination: Abbey, at para. 90.