View source for Hearsay

{{LevelZero}}{{HeaderHearsay}}
== 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.<ref>
Subramanian v Public Prosecutor [1956] 1 W.L.R. 965 (P.C.) at 970 and adopted in Canada first in R v Abbey, [http://canlii.ca/t/1lpcd 1982 CanLII 25] (SCC), [1982] 2 SCR 24{{perSCC|Dickson J}}<br>
R v Evans, [http://canlii.ca/t/1frzq 1993 CanLII 86] (SCC), [1993] 3 SCR 653; [1993] S.C.J. No. 115{{perSCC|Sopinka J}} at para 16 ("An out-of-court statement which is for the truth of its contents is hearsay.")</ref> It is a type of evidence that is generally considered inadmissible.<ref>
R v Christie, [1914] A.C. 545 at p. 548<br>
R v Bradshaw, [http://canlii.ca/t/h4jxt 2017 SCC 35] (CanLII){{perSCC|Karakatsanis J}} at para 20 ("Hearsay is an out-of-court statement tendered for the truth of its contents. ") and 21<br>
R v Khelawon, [http://canlii.ca/t/1q51r 2006 SCC 57] (CanLII){{perSCC|Charron J}} at para 2 and 3<br>
</ref>

The hearsay rule has stated as:<ref>Sopinka, Lederman and Bryant, The Law of Evidence in Canada, Butterworths, 2d ed. ss.6.2</ref>
{{quotation|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.<ref>R v Evans<br> 
R v Smith, [http://canlii.ca/t/1fs9x 1992 CanLII 79] (SCC), [1992] 2 SCR 915{{perSCC|Lamer CJ}}<br> 
R v Hawkins, [http://canlii.ca/t/1fr51 1996 CanLII 154] (SCC), [1996] 3 SCR 1043{{perSCC|Lamer CJ and Iacobucci J}}, at 153</ref>

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.<ref>
Evans{{supra}} at p. 102-103<br>
</ref>

Allowing in hearsay can compromise trial fairness and the truth seeking process.<Ref>
Bradshaw{{supra}} at para 20<br>
</ref>

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==Reasons for Exclusion==
Hearsay statements are difficult to assess for trustworthiness.<Ref>
R v Bradshaw, [http://canlii.ca/t/h4jxt 2017 SCC 35] (CanLII){{perSCC|Karakatsanis J}} at para 20<br>
</ref>

Courts generally do not allow such evidence as it is generally said to be untrustworthy for several reasons:<Ref>Sopkina, at 175<Br>
</ref>
#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.<ref>
Bradshaw{{supra}} at para 20</ref>
#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.<ref> R v Abel [http://canlii.ca/t/fq2cl 2011 NLTD 173] (CanLII){{perNLSC|Stack J}}<br>
R v Khelawon, [http://canlii.ca/t/1q51r 2006 SCC 57] (CanLII){{perSCC|Charron J}} at para 38 - no way to examine reliability by cross-examination<br>
</ref>
#There is no opportunity to observe the demeanour of the declarant, thus making it harder to assess the quality of the evidence.<ref>
Bradshaw{{Supra}} at para 20<br>
</ref>
#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<br>
Khelawon{{supra}} at para 2<br>
R v Baldree, [http://canlii.ca/t/h4jxt 2013 SCC 35] (CanLII){{perSCC|Fish J}} at para 32<br>
</ref>

These are known as the hearsay dangers.<ref>
''R v KGB'', [1993] 1 SCR 740, [http://canlii.ca/t/1fs50 1993 CanLII 116] (SCC), 79 CCC (3d) 257{{perSCC|Lamer CJ}} at pp. 271-72 (CCC)
</ref>

Additional concerns were also identified:<Ref>
Baldree{{supra}} at para 32<Br>
</ref>
# "the declarant may have misperceived the facts to which the hearsay statement relates";
# "even if correctly perceived, the relevant facts may have been wrongly remembered; "
# "the declarant may have narrated the relevant facts in an unintentionally misleading manner; and"
# "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.<ref>
Khelawon{{supra}} at para 38<br>
Bradshaw{{supra}} at para 20<br>
''R v KGB'', [http://canlii.ca/t/1fs50 1993 CanLII 116] (SCC), [1993] 1 SCR 740{{perSCC|Lamer CJ}} at p.764<br>
</ref>

Allowing hearsay evidence "compromise trial fairness and the trial’s truth-seeking process".<ref>
Bradshaw{{supra}} at para 20<br>
</ref>

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==Elements of Hearsay==
Where hearsay potentially arises there are four elements to consider for the rule to be engaged:<ref> R v Baldree [http://canlii.ca/t/fqcws 2012 ONCA 138] (CanLII){{perONCA| Feldman JA}} (1:1:1) at para 46, appealed to SCC on other grounds</ref>
# a declarant
# a recipient
# a statement and 
# 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.<Ref> R v Khelawon, [http://canlii.ca/t/1q51r 2006 SCC 57], [2006] 2 SCR 787{{perSCC|Charron J}}, at para 56</ref>

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.<ref> R v Evans, [http://canlii.ca/t/1frzq 1993 CanLII 86] (SCC), [1993] 3 SCR 653{{perSCC|Sopinka J}}{{at|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")</ref>

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.<ref>Khelawon{{supra}} at 42</reF>
The primary reason for this is that is it not possible to test the reliability of the statement such as by cross-examination.<ref>
R v Sharif, [http://canlii.ca/t/25kbx 2009 BCCA 390] (CanLII){{perBCCA|Saunders JA}}{{at|12}}</ref>

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==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.<ref>
R v Baldree, [http://canlii.ca/t/fz7b7 2013 SCC 35] (CanLII){{perSCC|Fish J}}
</ref>

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=== Computer Records ===
{{seealso|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.<Ref>
R v Saddleback, [http://canlii.ca/t/ftxnv 2012 ABQB 670] (CanLII){{perABQB|Lee J}} at para 45-54</ref>

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===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.<ref>
As non-hearsay see R v Lucia, [http://canlii.ca/t/2br2d 2010 ONCA 533] (CanLII){{TheCourt}} at para 7<br>
R v Edwards, [http://canlii.ca/t/6k30 1994 CanLII 1461] (ON CA){{perONCA|McKinlay JA}} at pp. 248-249 (see also para 22) -admissible as non-hearsay<br>
R v Nguyen, [http://canlii.ca/t/dtz 2003 BCCA 556] (CanLII), (2003), 180 CCC (3d) 347 (BCCA){{perBCCA|Mackenzie JA}} at para 17<br> 
R v Ly, [http://canlii.ca/t/1fqxc 1997 CanLII 330] (SCC), [1997] 3 SCR 698{{perSCC|McLachlin J}}, at paras 1-4<br>
R v Cook, [http://canlii.ca/t/23gjx 1978 CanLII 399] (BC CA), (1978), 46 CCC (2d) 318 (BCCA){{perBCCA|McIntyre JA}}, at p. 320<br>
R v Duncan, [http://canlii.ca/t/1f81b 2001 CanLII 11779] (MB PC){{perMBPC|Joyal J}} - phone-call inadmissible<br>
R v Bjornson, [http://canlii.ca/t/27522 2009 BCSC 1779] (CanLII){{perBCSC|Bennett J}} - admissible <br>
R v Guan, [http://canlii.ca/t/2blxm 2010 YKSC 14] (CanLII){{perYKSC|Veale J}} - admissible b/c not hearsay<br>
R v Mironuk-Hurak, [http://canlii.ca/t/ftr6l 2012 MBQB 290] (CanLII){{perMBQB|Oliphant J}} - admissible b/c not hearsay(CanLII)
</ref>

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==Purpose of Introducing the Statement==

Typical non-hearsay uses of out-of-court statements include:
* officers testifying to their [[Reasonable and Probable Grounds|reasonable and probable grounds]] to perform some duty
* the fact that the statement was made
* narrative 
* investigative narrative to counterclaim that the investigation was inadequate.<Ref>
R v Dhillon, [http://canlii.ca/t/1cqpr 2002 CanLII 41540] (ON CA){{perONCA|Laskin and Goudge JJA}}
</ref>

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.

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===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.<ref>
R v Denholme, [http://canlii.ca/t/2d3qn 2010 BCSC 1513] (CanLII){{perBCSC| Voith J}}
</ref>

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===Exculpatory Statements===
Hearsay statements of the accused that are exculpatory are still presumptively inadmissible under the general rule of hearsay.<ref>
R v Simpson, [http://canlii.ca/t/gkdsj 2015 SCC 40] (CanLII){{perSCC|Moldaver J}} at para 41<br>
R v Rojas, [http://canlii.ca/t/218cw 2008 SCC 56] (CanLII){{perSCC|Charron J}} at para 36 to 37<br>
</ref>

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===Conspiracy===
{{seealso|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.
<ref>
R v Wang, [http://canlii.ca/t/fzgmk 2013 BCCA 311] (CanLII){{perBCCA|Bennett JA}} at para 49
</ref>

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=== Opinion Evidence===
Non-specific hearsay opinion evidence is inadmissible.<ref> R v Ranger, [http://canlii.ca/t/5xwr 2003 CanLII 32900] (ON CA), (2003), 67 O.R. (3d) 1, 14 C.R. (6th) 324 (C.A.){{perONCA|Charron JA}} at para 65</ref>
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===Others===
See also [[Prior Consistent Statements]] - a form of hearsay

'''State of Mind'''<br>
An out of court statement can be admitted as proof of state of mind of the speaker.<ref>
R v Simpson, [1988] 1 SCR 3, [http://canlii.ca/t/1ftjr 1988 CanLII 89] (SCC){{perSCC|McIntyre J}}, at 22
</ref>

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== Topics ==
* [[Traditional Exceptions to Hearsay]]
* [[Principled Exception to Hearsay]]

==Case Digests==
*[[Hearsay (Cases)|Hearsay Case Digests]]