Hearsay

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This page was last substantively updated or reviewed August 2021. (Rev. # 95261)

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 been 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.

– N/A

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]

When hearsay is elicited on cross-examination it will still be inadmissible.[7]

  1. ↑ Subramanian v Public Prosecutor [1956] 1 W.L.R. 965 (P.C.) (UK) at 970 and adopted in Canada first in R v Abbey, 1982 CanLII 25 (SCC), [1982] 2 SCR 24, per Dickson J
    R v Evans, 1993 CanLII 86 (SCC), [1993] 3 SCR 653, per Sopinka J, 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 (UK), at p. 548
    R v Bradshaw, 2017 SCC 35 (CanLII), [2017] 1 SCR 865, per Karakatsanis J, 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), [2006] 2 SCR 787, per Charron J, at paras 2 and 3
    R v O'Brien, 1977 CanLII 168 (SCC), [1978] 1 SCR 591, per Dickson J
    R v Starr, 2000 SCC 40 (CanLII), [2000] 2 SCR 144, per Iacobucci J, at para 162
    R v Durocher, 2019 SKCA 97 (CanLII), 380 CCC (3d) 511, per Schwann JA, at para 56
    R v Bear, 2020 SKCA 86 (CanLII), 389 CCC (3d) 437, per Schwann JA, at para 51
  3. ↑ Sopinka, Lederman and Bryant, The Law of Evidence in Canada, Butterworths, 2d ed. ss.6.2
  4. ↑ Evans, supra
    R v Smith, 1992 CanLII 79 (SCC), [1992] 2 SCR 915, per Lamer CJ
    R v Hawkins, 1996 CanLII 154 (SCC), [1996] 3 SCR 1043, per Lamer CJ and Iacobucci J, at 153
  5. ↑ Evans, supra, at p. 102-103
  6. ↑ Bradshaw, supra, at para 20
    R v Dupe, 2016 ONCA 653 (CanLII), 340 CCC (3d) 508, per Doherty JA, at para 44 (this type of evidence is "excluded both to protect the integrity of the truth-seeking function of the trial and to preserve the fairness of the trial")
  7. ↑ R v Laverty (No. 2), 1979 CanLII 3010 (ON CA), 47 CCC (2d) 60, per Zuber JA

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 the "declarant’s perception, memory, narration, or sincerity."[6]

These are known as the hearsay dangers.[7]

Additional concerns were also identified:[8]

  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 defining feature.[9]

Allowing hearsay evidence "compromise trial fairness and the trial’s truth-seeking process."[10]

  1. ↑ R v Bradshaw, 2017 SCC 35 (CanLII), [2017] 1 SCR 865, per Karakatsanis J, at para 20
  2. ↑ Sopkina, at 175
  3. ↑ Bradshaw, supra, at para 20
  4. ↑ R v Abel, 2011 NLTD 173 (CanLII), 989 APR 113, per Stack J
    R v Khelawon, 2006 SCC 57 (CanLII), [2006] 2 SCR 787, per Charron J, at para 38 - no way to examine reliability by cross-examination
  5. ↑ Bradshaw, supra, at para 20
  6. ↑ Bradshaw, supra, at para 20
    Khelawon, supra, at para 2
    R v Baldree, 2013 SCC 35 (CanLII), [2017] 1 SCR 865, per Fish J, at para 32
  7. ↑ R v KGB, 1993 CanLII 116 (SCC), [1993] 1 SCR 740, per Lamer CJ, at pp. 271-72 (CCC)
  8. ↑ Baldree, supra, at para 32
  9. ↑ Khelawon, supra, at para 38
    Bradshaw, supra, at para 20
    KGB, supra, at p. 764
    R v Al-Enzi, 2021 ONCA 81 (CanLII), per Tulloch JA, at para 118
    R v Dupe, 2016 ONCA 653 (CanLII), 340 CCC (3d) 508, per Doherty JA, at para 44 (“absent contemporaneous cross-examination of the declarant, the party against whom the evidence is offered cannot effectively test the reliability and veracity of the out-of-court statement")
  10. ↑ 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 (who does not testify)
  2. a recipient (who does testify)
  3. a statement (that is being tendered) and
  4. a purpose for introducing the statement (proof of the truth of its contents)

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 it is not possible to test the reliability of the statement such as by cross-examination.[5]

Hearsay applies equally to out-of-court statements made by witnesses who do testify.[6] In such cases, the hearsay rule applies once the witness "does not repeat or adopt the information contained in the out-of-court statement."[7]

  1. ↑ R v Baldree, 2012 ONCA 138 (CanLII), 280 CCC (3d) 191, per Feldman JA (1:1:1), at para 46, appealed to SCC on other grounds
    R v MC, 2014 ONCA 611 (CanLII), 314 CCC (3d) 336, per Watt JA, at para 51
  2. ↑ R v Khelawon, 2006 SCC 57 (CanLII), [2006] 2 SCR 787, per Charron J, at para 56
  3. ↑ R v Evans, 1993 CanLII 86 (SCC), [1993] 3 SCR 653, per Sopinka J, 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. ↑ Khelawon, supra, at para 42
  5. ↑ R v Sharif, 2009 BCCA 390 (CanLII), 275 BCAC 171, per Saunders JA, at para 12
  6. ↑ MC, supra, at para 52
    Khelawon, supra, at para 37
    R v KGB, 1993 CanLII 116 (SCC), [1993] 1 SCR 740, per Lamer CJ at pp. 763-764
    R v Starr, 2000 SCC 40 (CanLII), [2000] 2 SCR 144, per Iacobucci J, at para 158
  7. ↑ MC, supra ta para 52
    Khelawon at para 38

Types of Statements

Traditionally, hearsay applies to oral statements and written statements.[1] While "statements" are usually in the form of spoken or written words, they will include conduct that communicates meaning, such as a head shake or nod.[2]

  1. ↑ R v Christie , [1914] A.C. 545 (UK)
  2. ↑ R v Nurse, 2019 ONCA 260 (CanLII), 145 OR (3d) 241, per Trotter JA
    R v Borel, 2021 ONCA 16 (CanLII), per Nordheimer JA, at para 42
    R v Badgerow, 2014 ONCA 272 (CanLII), 311 CCC (3d) 26, per Strathy JA, at para 106
    R v Khelawon, 2006 SCC 57 (CanLII), [2006] 2 SCR 787, per Charron J, at para 34 ("hearsay evidence includes communications expressed by conduct")

Implied Assertions

An implied assertion (also called "implied hearsay") is an act or utterance that conveys some information to the recipient in an implied manner. [1] Such conduct can include:[2]

  • nodding the head
  • pointing to someone in accusation
  • pointing at something
  • shrugging shoulders
  • showing something to someone

The trier of fact must determine the meaning of the words that were intended to be conveyed.[3]

Non-assertive conduct, however is conduct from which a statement can be inferred based on the declarants belief.[4]

Courts do not make a principled distinction between implied assertions and explicit hearsay.[5]

  1. ↑ R v Nurse, 2019 ONCA 260 (CanLII), 145 OR (3d) 241, per Trotter JA, at para 54
  2. ↑ R v Badgerow, 2014 ONCA 272 (CanLII), 311 CCC (3d) 26, per Strathy JA, at para 107
  3. ↑ Badgerow, ibid., at para 107
  4. ↑ Nurse, supra, at para 54
  5. ↑ R v Baldree, 2013 SCC 35 (CanLII), [2013] 2 SCR 520, per Fish J

Computer Records

See also: Electronic Documents and Records

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), 548 AR 307, per Lee J, at paras 45 to 54

Phone Calls or Text Messages

Discovered electronic communications are routinely admissible despite them consisting of hearsay.[1]

This is in part because text messages are, "in essence," electronic conversations where the only practical difference is the "transmission process."[2]

The reliability of communications is generally high. They are often spontaneous and contemporaneous with the events they describe.[3]

The reliability of text messages will increase where there is a greater number of text messages on a single subject.[4] The lack of full context in longer conversations will generally go to weight.[5] By contrast, reliability may be undermined where the message lacks sufficient context or where the meaning is otherwise unclear.[6] The lack of context must be considered when deciding what meaning to make from the conversation.[7]

Drug Purchase Calls

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.[8]

Other Examples

The possession of ID with a person's name is not necessarily hearsay as the probability of possessing a document of that description is probative to ID.[9]

Guilty Pleas of Co-Accused

The guilty plea of a co-accused is a form of hearsay.[10] This form of hearsay is "rarely" admissible.[11]

  1. ↑ R v Cater, 2012 NSPC 15 (CanLII), 998 APR 46, per Derrick J, at para 36
    R v Calnen, 2015 NSSC 319 (CanLII), per Chipman J, at para 27
  2. ↑ Cater, supra
    R v TELUS Communications Co, 2013 SCC 16 (CanLII), [2013] 2 SCR 3, per Abella J, at para 5 ("Text messaging is, in essence, an electronic conversation. The only practical difference between text messaging and the traditional voice communications is the transmission process. ...")
  3. ↑ R v Burns, 2016 SKCA 67 (CanLII), per Caldwell JA (3:0), at para 27
    Cater, supra, at paras 38 to 40
  4. ↑ R v Gerrior, 2014 NSCA 76 (CanLII), 348 NSR (2d) 354, per Beveridge JA (3:0), at paras 43 to 48
    R v Bridgman, 2017 ONCA 940 (CanLII), 357 CCC (3d) 213, per Fairburn JA (3:0), at paras 55 to 57
  5. ↑ R v JR, 2015 ONCJ 837 (CanLII), per Paciocco J, at para 19
  6. ↑ R v Foerster, 2017 BCCA 105 (CanLII), 346 CCC (3d) 163, per Groberman JA (3:0), at paras 72 to 74
  7. ↑ e.g. R v Delorme, 2013 SKQB 199 (CanLII), per Keene J, at para 69 - three text messages n a phone without context
  8. ↑ As non-hearsay see R v Lucia, 2010 ONCA 533 (CanLII), OJ No 3154, per curiam, at para 7
    R v Edwards, 1994 CanLII 1461 (ON CA), 91 CCC (3d) 123, per McKinlay JA, at pp. 248-249 (see also para 22) -admissible as non-hearsay
    R v Nguyen, 2003 BCCA 556 (CanLII), 180 CCC (3d) 347, per Mackenzie JA, at para 17
    R v Ly, 1997 CanLII 330 (SCC), [1997] 3 SCR 698, per McLachlin J, at paras 1 to 4
    R v Cook, 1978 CanLII 399, 46 CCC (2d) 318, per McIntyre JA, at p. 320
    R v Duncan, 2001 CanLII 11779 (MB PC), 11 WWR 134, per Joyal J - phone-call inadmissible
    R v Bjornson, 2009 BCSC 1779 (CanLII), per Bennett J - admissible
    R v Guan, 2010 YKSC 14 (CanLII), YJ No 72, per Veale J - admissible b/c not hearsay
    R v Mironuk-Hurak, 2012 MBQB 290 (CanLII), per Oliphant J - admissible b/c not hearsay
  9. ↑ R v Johnstone, 2019 ABQB 965 (CanLII), at para 71
  10. ↑ R v Rajmoolie, 2020 ONCA 791 (CanLII), per Lauwers JA (dissent)
  11. ↑ Rajmoolie, ibid.

Purpose of Introducing the Statement

The admissibility of a purported hearsay statement will vary depending on the intended purpose or use of the statement.[1] It is not "an inherent characteristic" to the evidence.[2]

  1. ↑ R v Baltzer, 1974 CanLII 1668 (NS CA), 27 CCC (2d) 118, per Macdonald JA
  2. ↑ R v MC, 2014 ONCA 611 (CanLII), 314 CCC (3d) 336, per Watt JA, at para 50
    R v Baldree, 2013 SCC 35 (CanLII), [2013] 2 SCR 520, per Fish J, at paras 30 and 36

As "Original" Evidence

A statement is said to be tendered as "original" evidence where it is tendered for a purpose other than for the truth of it's contents.[1]

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
  • proof of knowledge of accused[2]
  • complicity or conspiracy[3]
  • authorship[4]
  • narrative
  • investigative narrative to counterclaim that the investigation was inadequate.[5]

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 Camara, 2021 ONCA 79 (CanLII), per Watt JA, at para 84
    R v Pisani, 1971 CanLII 434 (ON CA), 5 CCC (2d) 133
    R v Ferber, 1987 ABCA 86 (CanLII), 36 CCC (3d) 157, per McClung JA
    R v Ratten , [1972] AC 378 (UK)
    Milne and Seville v. Leisler (1862), 7 H. & N. 786 (UK)
  2. ↑ R v Turlon, 1989 CanLII 7206 (ON CA), 49 CCC (3d) 186, per Zuber AJ
  3. ↑ Turlon, supra
    R v Bloomfield, Cormier and Ettinger, 1973 CanLII 1473 (NB CA), 10 CCC (2d) 398, per Limerick JA
  4. ↑ R v Armstrong, 1970 CanLII 1087 (NS CA), 1 CCC (2d) 106, per McKinnon CJ
  5. ↑ R v Dhillon, 2002 CanLII 41540 (ON CA), 166 CCC (3d) 262, per Laskin and Goudge JJA

Corroborating 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), per Voith J

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), [2015] 2 SCR 827, per Moldaver J, at para 41
    R v Rojas, 2008 SCC 56 (CanLII), [2008] 3 SCR 111, per Charron J, at paras 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), 299 CCC (3d) 431, per Bennett JA, at para 49

Opinion Evidence

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

  1. ↑ R v Ranger, 2003 CanLII 32900 (ON CA), 67 OR (3d) 1, 14 CR (6th) 324 (CA), per Charron JA, 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 the speaker's state of mind.[1]

Medical Diagnosis

It is generally not acceptable hearsay to establish a medical diagnosis only by the oral evidence of the patient.[2] A medical diagnosis or opinion may be admissible for the fact that it was said and not for the truth of its contents.[3]

  1. ↑ R v Simpson, 1988 CanLII 89 (SCC), [1988] 1 SCR 3, per McIntyre J, at 22
  2. ↑ e.g. R v Turmel, 2001 BCPC 430 (CanLII), per Alexander J, at para 13
    Krause v Krause, 1974 CanLII 313 (AB QB), 4 WWR 738, per DC Mcdonald J, at para 6
  3. ↑ e.g. Balogun v Pandher, 2019 ABQB 291 (CanLII), per Gill J, at para 18

Topics

Case Digests

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