Monday, January 5, 2009

language versus purpose

From the Federal Vourt of Appeal:

"...As to his second reason, the Motions Judge left for the Trial Judge the issue of whether the new "principled" approach for admitting hearsay evidence might justify an exception to rule 81. In R. v. Khan, 1990 CanLII 77 (S.C.C.), [1990] 2 S.C.R. 531; R. v. Smith, 1992 CanLII 79 (S.C.C.), [1992] 2 S.C.R. 915, the Supreme Court has recognized that hearsay evidence may be admitted if it is demonstrated that the evidence is reliable and that its admission is necessary..."

"...Before dealing with whether the question should have been left to the Trial Judge, I would observe that as worded, except on motions, rule 81(1) admits of no exceptions to the requirement that affidavits shall be confined to facts within the personal knowledge of the deponent. Nonetheless, prior decisions indicate that hearsay evidence may be admitted according to the "principled" approach. (See Ethier v. Canada (R.C.M.P. Commissioner), 1993 CanLII 2935 (F.C.A.), [1993] 2 F.C. 659 (C.A.)). ...."

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