R. v. Khan
Encyclopedia
R. v. Khan [1990] 2 S.C.R. 531 is a landmark
Supreme Court of Canada
decision that began a series of major changes to the hearsay
rule and the rules regarding the use of children as witnesses in court. In this case, and subsequently in R. v. Smith (1992)
, R. v. B.(K.G.) (1993), R. v. U.(F.J.) (1995), R. v. Starr (2000), and finally, R. v. Khelawon (2006), the Court developed the “principled approach” to hearsay, where hearsay statements can be admitted if they are sufficiently reliable and necessary.
At trial, the judge held that the child was not competent
to give unsworn testimony and that he would not admit the statements made by the child to her mother about the assault as it was hearsay and could not fall into the “spontaneous declaration” exception as it was not contemporaneous. On the basis of this finding, Khan was acquitted.
On appeal, the Court of Appeal found that the trial judge had been too strict in the consideration of both testimony and the hearsay. The acquittal was overturned and a new trial ordered.
The issues before the Court were:
On the first issue, McLachlin noted that the trial judge improperly applied section 16 of the Canada Evidence Act
that gave the conditions under which a child can testify. The judge was wrong in finding that since the child did not understand what it meant to tell a lie in court that she could not give testimony. For a child to testify under section 16, the judge must only determine if the witness has sufficient intelligence and an understanding of the duty to tell the truth. Here, the judge found that both criteria were satisfied but inevitably placed too much emphasis on the child’s age. McLachlin noted, as an issue of policy, leniency must be given to child testimony otherwise offences against children could never be prosecuted.
On the second issue, McLachlin observed that the judge correctly applied the test for spontaneous declarations. To admit the statement as a "spontaneous declaration" would be to deform the exception beyond recognition. However, rather than have the issue disposed at this juncture, McLachlin went down a different route, changing the course of hearsay law for years to follow. She held that a “principled approach” must be taken to hearsay statements: if the statement was reliable and necessary it should be admitted.
In the instant case, the child, having aged considerably since the events, was unable to remember what happened, thus making the statement necessary. The statement was deemed reliable for a number of reasons: T should not have had an awareness of the type of acts that had taken place at her young age, she made the statement without any prompting from her mother, and she was disinterested in the litigation, in that she had no reason to lie to her mother and was not aware of the implications of what had happened to her. Finally, T's statement was corroborated by the semen found on her sleeve.
Landmark
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Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
decision that began a series of major changes to the hearsay
Hearsay
Hearsay is information gathered by one person from another person concerning some event, condition, or thing of which the first person had no direct experience. When submitted as evidence, such statements are called hearsay evidence. As a legal term, "hearsay" can also have the narrower meaning of...
rule and the rules regarding the use of children as witnesses in court. In this case, and subsequently in R. v. Smith (1992)
R. v. Smith (1992)
R. v. Smith, [1992] 2 S.C.R. 915 is a leading decision on hearsay by the Supreme Court of Canada. This decision, long with R. v. Khan , began was is called the "hearsay revolution" supplementing the traditional categorical approach to hearsay exceptions with a new "principled approach" based on...
, R. v. B.(K.G.) (1993), R. v. U.(F.J.) (1995), R. v. Starr (2000), and finally, R. v. Khelawon (2006), the Court developed the “principled approach” to hearsay, where hearsay statements can be admitted if they are sufficiently reliable and necessary.
At trial, the judge held that the child was not competent
Competence (law)
In American law, competence concerns the mental capacity of an individual to participate in legal proceedings. Defendants that do not possess sufficient "competence" are usually excluded from criminal prosecution, while witnesses found not to possess requisite competence cannot testify...
to give unsworn testimony and that he would not admit the statements made by the child to her mother about the assault as it was hearsay and could not fall into the “spontaneous declaration” exception as it was not contemporaneous. On the basis of this finding, Khan was acquitted.
On appeal, the Court of Appeal found that the trial judge had been too strict in the consideration of both testimony and the hearsay. The acquittal was overturned and a new trial ordered.
The issues before the Court were:
- Did the Court of Appeal err in concluding that the trial judge misdirected himself in ruling that the child witness was incompetent to give unsworn testimony?
- Did the Court of Appeal err in holding, contrary to the ruling of the trial judge, that a "spontaneous declaration" allegedly made by the child to her mother after the alleged sexual assault was admissible?
Reasons of the court
McLachlin, writing for a unanimous Court, held that the child was competent to testify and the statements should be admitted.On the first issue, McLachlin noted that the trial judge improperly applied section 16 of the Canada Evidence Act
Canada Evidence Act
The Canada Evidence Act is an Act of the Parliament of Canada, first passed in 1893, that regulates the rules of evidence in court proceedings under federal law. As law of evidence is largely set by common law, the Act is not comprehensive....
that gave the conditions under which a child can testify. The judge was wrong in finding that since the child did not understand what it meant to tell a lie in court that she could not give testimony. For a child to testify under section 16, the judge must only determine if the witness has sufficient intelligence and an understanding of the duty to tell the truth. Here, the judge found that both criteria were satisfied but inevitably placed too much emphasis on the child’s age. McLachlin noted, as an issue of policy, leniency must be given to child testimony otherwise offences against children could never be prosecuted.
On the second issue, McLachlin observed that the judge correctly applied the test for spontaneous declarations. To admit the statement as a "spontaneous declaration" would be to deform the exception beyond recognition. However, rather than have the issue disposed at this juncture, McLachlin went down a different route, changing the course of hearsay law for years to follow. She held that a “principled approach” must be taken to hearsay statements: if the statement was reliable and necessary it should be admitted.
In the instant case, the child, having aged considerably since the events, was unable to remember what happened, thus making the statement necessary. The statement was deemed reliable for a number of reasons: T should not have had an awareness of the type of acts that had taken place at her young age, she made the statement without any prompting from her mother, and she was disinterested in the litigation, in that she had no reason to lie to her mother and was not aware of the implications of what had happened to her. Finally, T's statement was corroborated by the semen found on her sleeve.