Hearsay

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Introduction

Hearsay evidence is any statement, either written or oral, which was made out of court, but is presented in court to prove the truth of that statement.[1] It is a type of evidence that is generally considered inadmissible.[2]

The hearsay rule has stated as:[3]

Written or oral statements, or communicative conduct made by persons otherwise than in testimony at the proceeding in which it is offered, are inadmissible, if such statements or conduct are tendered either as proof of their truth or as proof of assertions implicit therein.

The definition has been addressed in several cases.[4]

Any out-of-court statement that is adduced simply to prove the statement was made is not hearsay. The statement is admissible as long as it is relevant.[5]

Allowing in hearsay can compromise trial fairness and the truth seeking process.[6]

  1. Subramanian v Public Prosecutor [1956] 1 W.L.R. 965 (P.C.) at 970 and adopted in Canada first in R v Abbey, 1982 CanLII 25 (SCC), [1982] 2 SCR 24
    R v Evans, 1993 CanLII 86 (SCC), [1993] 3 SCR 653; [1993] S.C.J. No. 115 at para 16 ("An out-of-court statement which is for the truth of its contents is hearsay.")
  2. R v Christie, [1914] A.C. 545 at p. 548
    R v Bradshaw, 2017 SCC 35 at para 20 ("Hearsay is an out-of-court statement tendered for the truth of its contents. ") and 21
    R v Khelawon, 2006 SCC 57 (CanLII) at para 2 and 3
  3. Sopinka, Lederman and Bryant, The Law of Evidence in Canada, Butterworths, 2d ed. ss.6.2
  4. R v Evans
    R v Smith, 1992 CanLII 79 (SCC), [1992] 2 SCR 915
    R v Hawkins, 1996 CanLII 154 (SCC), [1996] 3 SCR 1043, at 153
  5. Evans at p. 102-103
  6. Bradshaw, supra at para 20

Reasons for Exclusion

Hearsay statements are difficult to assess for trustworthiness.[1]

Courts generally do not allow such evidence as it is generally said to be untrustworthy for several reasons:[2]

  1. The admission of such evidence lends itself to the perpetration of fraud. This is in part due to the lack of oath on the part of the source.[3]
  2. Hearsay evidence results in a decision based upon secondary and, therefore, weaker evidence, rather than the best evidence available. Related to this, there is no opportunity to cross-examine or otherwise test the evidence of the source.[4]
  3. There is no opportunity to observe the demeanour of the declarant, thus making it harder to assess the quality of the evidence.[5]
  4. The introduction of such evidence will lengthen trials.

These concerns include the inability to investigate "declarant’s perception, memory, narration, or sincerity".<ref<> Bradshaw at para 20
Khelawon, supra at para 2
R v Baldree, 2013 SCC 35 (CanLII) at para 32
</ref>

These are known as the hearsay dangers.[6]

Additional concerns were also identified:[7]

  1. "the declarant may have misperceived the facts to which the hearsay statement relates";
  2. "even if correctly perceived, the relevant facts may have been wrongly remembered; "
  3. "the declarant may have narrated the relevant facts in an unintentionally misleading manner; and"
  4. "the declarant may have knowingly made a false assertion. The opportunity to fully probe these potential sources of error arises only if the declarant is present in court and subject to cross-examination."

Of these dangers, the lack of contemporaneous cross-examination is the most essential definiting feature.[8]

Allowing hearsay evidence "compromise trial fairness and the trial’s truth-seeking process".[9]

  1. R v Bradshaw, 2017 SCC 35 (CanLII) at para 20
  2. Sopkina, at 175
  3. Bradshaw, supra at para 20
  4. R v Abel 2011 NLTD 173 (CanLII)
    R v Khelawon, 2006 SCC 57 (CanLII) at para 38 - no way to examine reliability by cross-examination
  5. Bradshaw, supra at para 20
  6. R v KGB, [1993] 1 SCR 740, 1993 CanLII 116 (SCC), 79 CCC (3d) 257, at pp. 271-72 (CCC)
  7. Baldree, supra at para 32
  8. Khelawon, supra at para 38
    Bradshaw, supra at para 20
    R v KGB, 1993 CanLII 116 (SCC), [1993] 1 SCR 740 at p.764
  9. Bradshaw, supra at para 20

Elements of Hearsay

Where hearsay potentially arises there are four elements to consider for the rule to be engaged:[1]

  1. a declarant
  2. a recipient
  3. a statement and
  4. a purpose for introducing the statement

The first three are almost always made out, the fourth requirement is usually the source of controversy. Not every out of court statement is hearsay.[2]

The prohibited purpose consists of admission for the purpose of proving the “truth” of its contents. Otherwise, it is admissible evidence. That is, statements that used to show the recipient had notice, knowledge or motive, or was in some way probative, then it is otherwise admissible.[3]

If it is for the “truth of its contents” then it is presumptively inadmissible unless it fits in a traditional categorical exception or under the principled exception.[4] The primary reason for this is that is it not possible to test the reliability of the statement such as by cross examination.[5]

  1. R v Baldree 2012 ONCA 138 (CanLII) at para 46, appealed to SCC on other grounds
  2. R v Khelawon, 2006 SCC 57, [2006] 2 SCR 787, at para 56
  3. R v Evans, 1993 CanLII 86 (SCC), [1993] 3 SCR 653 at para 16 ("An out-of-court statement offered simply as proof that the statement was made is not hearsay, and is admissible as long as it has some probative value")
  4. R v Khelawon at 42
  5. R v Sharif, 2009 BCCA 390 (CanLII), at para 12

Types of Statements

Implied Assertions

An implied assertion (also called "implied hearsay") is act or utterance that conveys some information to the recipient in an implied manner. There was considerable debate over whether this sort of evidence is hearsay.

Courts do not make a principled distinction between implied assertions and explicit hearsay.[1]

  1. R v Baldree, 2013 SCC 35 (CanLII)

Computer Records

See also: Electronic Documents

The absence of data in a computer system is not generally hearsay. For example, inquiries into the police records regarding a suspect that result in a negative result was found not to be hearsay.[1]

  1. R v Saddleback, 2012 ABQB 670 (CanLII) at para 45-54

Phone Calls or Text Messages

Drug purchase phone calls, usually where the police are on the other end of a call, have a history of litigation to exclude them as hearsay. More often than not they have been admitted as either necessary and reliable or as non-hearsay.[1]

  1. As non-hearsay see R v Lucia, 2010 ONCA 533 (CanLII) at para 7
    R v Edwards, 1994 CanLII 1461 (ON CA) at pp. 248-249 (see also para 22) -admissible as non-hearsay
    R v Nguyen, 2003 BCCA 556 (CanLII), (2003), 180 CCC (3d) 347 (BCCA), at para 17
    R v Ly, 1997 CanLII 330 (SCC), [1997] 3 SCR 698, at paras 1-4
    R v Cook, 1978 CanLII 399 (BC CA), (1978), 46 CCC (2d) 318 (BCCA), at p. 320
    R v Duncan, 2001 CanLII 11779 (MB PC) - phone-call inadmissible
    R v Bjornson, 2009 BCSC 1779 (CanLII) - admissible
    R v Guan, 2010 YKSC 14 (CanLII) - admissible b/c not hearsay
    R v Mironuk-Hurak, 2012 MBQB 290 (CanLII) - admissible b/c not hearsay(CanLII)

Purpose of Introducing the Statement

Typical non-hearsay uses of out-of-court statements include:

  • officers testifying to their reasonable and probable grounds to perform some duty
  • the fact that the statement was made
  • narrative
  • investigative narrative to counter claim that the investigation was inadequate.[1]

Where evidence of an out-of-court statement is being used for a non-hearsay purpose (not for the truth of its contents), it will still be limited by relevance, probative value, and may be subject to a limiting instruction to a jury.

  1. R v Dhillon, 2002 CanLII 41540 (ON CA)

Statements of Co-Accused

The out-of-court statements of a co-accused will be hearsay and cannot be admitted for the purpose of corroborating a witness.[1]

  1. R v Denholme, 2010 BCSC 1513 (CanLII)

Exculpatory Statements

Hearsay statements of the accused that are exculpatory are still presumptively inadmissible under the general rule of hearsay.[1]

  1. R v Simpson, 2015 SCC 40 (CanLII) at para 41
    R v Rojas, 2008 SCC 56 (CanLII) at para 36 to 37

Conspiracy

See also: Traditional Exceptions to Hearsay

A communication by a co-conspirator in furtherance of a common unlawful design that makes out the conspiracy can be admissible to prove the existence of a prior agreement. [1]

  1. R v Wang, 2013 BCCA 311 (CanLII) at para 49

Opinion Evidence

Non-specific hearsay opinion evidence is inadmissible.[1]

  1. R v Ranger, 2003 CanLII 32900 (ON CA), (2003), 67 O.R. (3d) 1, 14 C.R. (6th) 324 (C.A.) at para 65

Others

See also Prior Consistent Statements - a form of hearsay

State of Mind
An out of court statement can be admitted as proof of state of mind of the speaker.[1]

  1. R v Simpson, [1988] 1 SCR 3, 1988 CanLII 89 (SCC), at 22

Topics

Case Digests