Traditional Exceptions to Hearsay: Difference between revisions

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Revision as of 20:26, 20 June 2024


This page was last substantively updated or reviewed January 2020. (Rev. # 94144)

Traditional Categories

See also: Hearsay and Principled Exception to Hearsay

Statements that fall within the traditional categories of hearsay exceptions are presumptively admissible. They can nevertheless be challenged under the principles of necessity and reliability. [1]

The traditional categories of exceptions consist of the following:

  1. Where the statement is an admission by an accused person
  2. When the statement is made against the declarator's interest
  3. When it is made in the course of the declarator's duty
  4. When the statement is part of a public or governmental document
  5. Dying declaration
  6. Statements made when the declarator was in a state of shock or surprise (Res Gestae)
  7. Statements describing the declarator's physical or psychological condition
  8. Sworn testimony from a previous hearing
  9. Past recollection recorded
  10. Statement conveys "state of mind"
  11. Statement conveys "present intentions"
  12. Statutory exceptions
  13. Statement is part of the narrative of the evidence
  14. Corporate admissions

All categories of exceptions must be interpreted in a manner consistent with the principled approach. Where the two approaches conflict, the principled approach must prevail.[2]

Where a trial judge determines that the hearsay statement is captured by the categorical expcetion, subject to discretionary exclusion, the finding in "conclusive" and the evidence will be admitted.[3]

In "rare cases" evidence that is captured by the categories can be excluded where the statemetn does not meet the requirements of necessity and reliability in the circumstances.[4] Where the traditional approach ocnflicts with the principled approach, the latter must always prevail.[5]

  1. ↑ R v Starr, 2000 SCC 40 (CanLII), [2000] 2 SCR 144, per Iacobucci J
    R v Mapara, 2005 SCC 23 (CanLII), [2005] 1 SCR 358, per McLachlin CJ
  2. ↑ Starr, supra, at paras 213, 214
  3. ↑ R v Khelawon, 2006 SCC 57 (CanLII), [2006] 2 SCR 787, per Charron J, at para 60
  4. ↑ Starr, supra, at para 214
    Mapara, supra, at para 15
    R v Nurse, 2019 ONCA 260 (CanLII), 145 OR (3d) 241, at para 61 ("The Supreme Court has also recognized that, in “rare cases”, evidence that would otherwise fall within a valid hearsay exception may be excluded if it does not meet the requirements of necessity and reliability in the particular circumstances of the case.")
  5. ↑ Starr, supra, at para 155(“in the event of a conflict between the two, it is the principled approach that must prevail”)

Admissions of the Accused

See also: Confessions, Admissions, and Statements Against Interest Exception

Generally, admission include “any statement made by a declarant and tendered as evidence at trial by the opposing party.”[1]

Any admission by an accused is admissible as provided that its probative value outweighs its prejudicial effect. [2]

Admission made by the accused as well as statements adopted by the accused in an intercepted communication is admissible as a hearsay exception.[3]

It is necessary that the trier of fact make a finding that the statement was actually made by the accused and not anyone else before it may be used.[4]

A failure to instruct the jury on the necessity of finding that a wiretap voice recording was of the accused may be a reversible error.[5]

  1. ↑ R v Violette, 2008 BCSC 422 (CanLII), [2008] BCJ No. 2781(S.C.), per Romilly J at 63
  2. ↑ R v Terry, 1996 CanLII 199 (SCC), [1996] 2 SCR 207, per McLachlin J, at para 28
  3. ↑ Violette, supra at 65
  4. ↑ R v Masters, 2014 ONCA 556 (CanLII), 313 CCC (3d) 275, per curiam, at para 65
  5. ↑ Masters, ibid., at paras 50 to 66
    R v Quidley, 2008 ONCA 501 (CanLII), 232 CCC (3d) 255, per Blair JA

Declarator's Duty

The declarator duty exception requires that:

  • the declarator be deceased;
  • the declarator had a duty act and record the actions;
  • the declarator has no motive to mislead;
  • the record was made by the declarator;
  • the record records only what was seen first-hand by the declarator.

Notes that were created where there was an absence of a duty to record may be insufficiently reliable or trustworthy to be admitted.[1]

When this relates to a hearsay statement reduced to writing, much of this exception is also captured by the statutory exceptions found in s. 29 and 30 of the Canada Evidence Act.[2]

  1. ↑ e.g. R v Laverty (No. 2), 1979 CanLII 3010 (ON CA), 47 CCC (2d) 60, 9 CR (3d) 288, per Zuber JA
  2. ↑ Business Records Under the Canada Evidence Act
    Financial Institution Records

Adoption by Witness

A declarant of an out-of-court statement who adopts the statement while testifying or indicates a belief in the statement, the statement can then be put in for the truth of its contents.[1]

  1. ↑ R v Streu, 1989 CanLII 52 (SCC), [1989] 1 SCR 1521, per Sopinka J, at p. 1530

State of Mind

A statement of a declarant can be adduced into evidence as a hearsay exception where it explicitly declares the state of mind of the declarant. [1] Where the declaration can infer the state of mind, it is also admissible but not as a hearsay exception, but rather as circumstantial evidence inferring the state of mind.[2]

  1. ↑ R v Candir, 2009 ONCA 915 (CanLII), 250 CCC (3d) 139, per Watt JA, at para 56
    R v RP, 1990 CanLII 6921 (ONSC), 58 CCC (3d) 334, per Sutherland J, at para 16
  2. ↑ RP, ibid.

Present and Future Intentions

Similar to state of mind exception, it is permissible to admit statements of a witnesses' future intentions.[1]

Any utterance of a person indicating that the person had "certain intention or design will [be admissible as evidence that the person] acted in accordance with that stated intention or plan where it is reasonable to infer that the [witness] did so." Reasonableness of the inference will depend on factors such as "nature of the plan described in the utterance, and the proximity in time between the statement as to the plan and the proposed implementation of the plan."[2]

  1. ↑ R v Chang, 2003 CanLII 29135 (ON CA), 173 CCC (3d) 397, per O'Connor ACJ and Armstrong JA
  2. ↑ R v RP, 1990 CanLII 6921 (ONSC), 58 CCC (3d) 334, 10 WCB (2d) 279 (Ont. H.C.J.), per Sutherland J, at para 24

Business Records

A record is admissible as hearsay where it is a business record. A business record is a record that is required to kept accurate as part of the normal course of business. The document can be admitted under the Canada Evidence Act or common law.

See Business Records -- R v Wilcox, 2001 NSCA 45 (CanLII), 152 CCC (3d) 157, per Cromwell JA

Public Records

At common law, a "public document" made by a public officer is admissible as hearsay.[1] A public document must be one "made for the purpose of the public making use of it. Its object must be that all persons concerned in it may have access to it."[2]

An original copy of a tax records are admissible as hearsay.[3]

  1. ↑ Pettit v Lilley [1946] 1 KB 401, 115 LJKB 385 (UK)
    Thrasyvoulos Ioannou et al. v. Papa Christoforos Demetriou et al. , [1952] A.C. 84, [1952] 1 All E.R. 179 (UK)
    R v Kaipiainen, 1953 CanLII 96 (ON CA), 107 CCC 377, per Aylesworth JA
  2. ↑ Pettit at p. 407
  3. ↑ Ship v The King, 1949 CanLII 363 (QC CA), 95 CCC 143, per Barclay J

Documents in Possession of the Accused or Other Contrary Parties

Documents that are found to be in actual or constructive possession of the accused may be admitted as hearsay. The documents can be used to show knowledge, participation, or state of mind. [1]

Documents in possession provide that "contents of a document found in possession of the accused may be used as circumstantial evidence of the accused’s involvement in the transactions to which the documents relate."[2]

Documents in possession are admissible for the truth of its contents as hearsay where the accused has shown “recognition, adoption or acting upon the documents"[3]

There is also a view that documents in possession are admissible as circumstantial evidence, not as hearsay, to prove the accused's knowledge or, or connection with, the transactions or matters to which the documents relate."[4]

Where the party in possession is a corporation, the documents must be shown to have come to the attention of a person in the company who is authorized to deal with the matter that is the subject matter of the document.[5]

Text messages found on a cell phone in possession of the accused may be admissible under this exception to hearsay.[6]

  1. ↑ See R v Wood, 2001 NSCA 38 (CanLII), 157 CCC (3d) 389, per curiam, at para 30
    R v Russell, 1920 CanLII 496 (MB CA), 33 CCC 1, per Perdue CJM
    See also Ontario v Rothman Inc, 2011 ONSC 5356 (CanLII), OJ No 4163, per Conway J aff'd 2013 ONCA 353 (CanLII), per Simmons and Blair JJA
    R v Turlon, 1989 CanLII 7206 (ON CA), 49 CCC (3d) 186, per Zuber JA
  2. ↑ R v Black, 2014 BCCA 192 (CanLII), 309 CCC (3d) 484, per Levine JA, at para 38
    R v Trosky, 2015 BCSC 1419 (CanLII), per Ball J, at para 20
  3. ↑ R v McCullough, 2001 SKQB 449 (CanLII), 48 CR (5th) 158, per Zarzeczny J
    Wood, supra
  4. ↑ Caccamo v The Queen, 1975 CanLII 11 (SCC), [1976] 1 SCR 786, per de Grandpré J -- document in cupboard contained a "mafia constitution” was admissible to connect accused with the criminal organization
    Black, supra, at para 38
    The issue, however, holds similarities with the debate regarding implied assertions settled in R v Baldree, 2013 SCC 35 (CanLII), [2013] 2 SCR 520, per Fish J
  5. ↑ R v Armour Pharmaceutical Co, 2007 CanLII 40864 (ONSC), , [2007] OJ 5846 (ONSC), per Benotto J
    Ontario v Rothmans Inc, 2011 ONSC 5356 (CanLII), OJ No 4163, per Conway J aff'd 2013 ONCA 353 (CanLII), per Simmons and Blair JJA
  6. ↑ Trosky, supra
    see also R v Howell, 2014 BCSC 2196 (CanLII), per Griffin J

Narrative and Context

Strictly speaking, narrative is not a traditional hearsay exception, and is not fully hearsay at all since it is not being proffered for the truth of its contents.

It is admissible on the basis that it provides context and greater understanding to the trier of fact of the details of the investigation. It is often useful in sexual assault cases in order to determine credibility.

Child Sex Assault Disclosure

A parent can testify to the details that their child disclosed in order to provide context on how the authorities became involved.[1]

Recorded Phone Calls

In the context of recorded phone calls, the “nature of the business” of the calls is not hearsay.[2]

  1. ↑ R v DC, 2008 NSCA 105 (CanLII), 238 CCC (3d) 16, per MacDonald CJ, at para 30 R v Dinardo, 2008 SCC 24 (CanLII), [2008] 1 SCR 788, per Charron J, at para 37
    R v REW, 2007 NSCA 50 (CanLII), 221 CCC (3d) 32, per Roscoe JA, at paras 13 to 17
    R v OB, 1995 NSCA 220 (CanLII) (working hyperlinks pending)
    R v F(JE), 1993 CanLII 3384 (ON CA) (working hyperlinks pending)
  2. ↑ R v Williams, 2009 BCCA 284 (CanLII), [2009] BCJ No. 1518, per Lowry JA

Summaries

An exception to hearsay is the "voluminous document exception" first outlined by Wigmore.

According to Wigmore, the exception applies where:[1]

  1. there are a very large number of detailed business records that would be impractical to present to the court;
  2. a competent witness has examined the documents and summarized them; and
  3. the documents have been made available to the other side.

Where the criteria are met, the summary can be admitted without putting in the original records as evidence.[2] The exception is not applicable where the work product "involve[s] interpretations that may be the subject of legitimate debate."[3]

See also Documentary Evidence#Summaries of Voluminous Documents

  1. ↑ R v Agyei, 2007 ONCJ 459 (CanLII), [2007] O.J. No. 3914, per Cowan J, at para 26
  2. ↑ R v Lee, 2011 NSPC 5 (CanLII), 945 APR 194, per Derrick J, at para 20
  3. ↑ Lee, ibid. at 19-20
    R v George, [1993] AJ No 798 (Alta. P.C.)(*no CanLII links)

Other Traditional Hearsay Exceptions

Statuory Exceptions

Case Digests

See Also

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