Case information

Criminal law — Evidence — Admissibility — Hearsay — Principled exception to the hearsay rule — Necessity — Whether trial judge erred in holding that complainant’s hearsay statements were necessary

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The complainant was the victim of an aggravated sexual assault; the only issue at trial was the identity of her assailant. The complainant attempted to testify in open court but became unresponsive and declined to continue. The following day, she attempted to testify via closed-circuit television in the presence of a support person, but told the court that she was afraid of the applicant because of the assault and could not continue. The complainant provided an unsworn statement to the police during the investigation and gave evidence at the preliminary inquiry. The Crown applied to adduce these statements under the principled exception to the hearsay rule.

The trial judge held that the complainant was unable to testify and that the statements were thus necessary. He further found that they were sufficiently reliable to admit. In combination with the other available evidence, the statements identified the applicant as the assailant, and the trial judge convicted him.

The Court of Appeal held that the trial judge’s findings of fact surrounding the complainant’s inability to testify were reasonable and supported by the evidence, and that the applicant had not shown a reviewable error in relation to the necessity of the statements. The appeal was dismissed.