leading case on admissibility of hearsay evidence – court cites Mr. Prithipaul’s published article - “The third interpretation of Khan sees it as creating a new residual exception for “necessary” and “reliable” evidence that does not fall within the traditional categories.  This was first expressed by M. T. MacCrimmon in “Developments in the Law of Evidence: The 1990-91 Term  -- Social Science, Law Reform and Equality” (1992), 3 Supreme Court L.R. (2d) 269, at p. 322, where she stated that Khan “created a residual exception to the hearsay rule similar to that in the Federal Rules of Evidence”.  This interpretation is also adopted by Sopinka, Lederman and Bryant, supra, at p. 191.  By far, this is the most widely accepted interpretation of Khan.  See McCrea, supra, at p. 208; R. Prithipaul, “Observations on the Current Status of the Hearsay Rule” (1997), 39 Crim. L.Q. 84, at p. 92…”

The accused was convicted of two counts of first degree murder. He had been accused of shooting C and W by the side of a highway. C and W had been drinking with the accused in a hotel. Outside, C and W offered a couple a ride home in W’s station wagon. W drove, and the group first stopped at an adjacent gas station, where G, a sometime girlfriend of C, approached the station wagon and had a conversation with C. During the conversation, G observed a car beside the gas station, and saw the accused in the car. She became angry with C because he was out with W rather than her, and she walked away from the car. C got out of the car and followed her into a laneway, where they had a further conversation. G asked C why he would not come home with her. According to G, C replied that he had to “go and do an Autopac scam with Robert”. She understood “Robert” to be the accused. A day or two later, G saw a picture in the newspaper of what she believed was the car in which she had seen the accused. The car had been found at the scene of the murder. She phoned the police and told them she had seen the car on the night of the murders at the gas station, with the accused in it. The Crown’s theory was that the killing was a gang‑related execution perpetrated by the accused. W was an unfortunate witness who was killed simply because she was in the wrong place at the wrong time. The theory was that the accused had used an Autopac scam as a pretext to get C out into the countryside. The trial judge found that G’s anticipated testimony regarding the scam was admissible under the “present intentions” or “state of mind” exception to the hearsay rule.

Two police officers visited the couple who had been given a ride. One of the officers testified that the wife, B, had told them that she had seen a man talking to C at the gas station. The officer testified that B indicated that the man in one of the photographs she was shown looked like the man whom she had seen at the gas station talking to C and who was also “probably driving the other car”. The photograph was a photo of the accused. Following a voir dire the trial judge ruled that the officers’ anticipated testimony was admissible pursuant to the prior identification exception to the hearsay rule, notwithstanding the fact that B had not testified at trial as to having seen a man talking to C at the gas station, or as to having identified that man in one of the photographs presented to her by the police.