Jacky's Law Blogs

My journey from aspiring law student to Ontario lawyer

Hearsay Rules

In Catergory: Learned Before Law School

Hearsay is an out-of-court statement for the truth of the matter asserted. The Supreme Court of Canada defined hearsay as “an out-of-court statement which is admitted for the truth of its contents”1.

To test whether something is hearsay, it has to be (1) a statement, (2) made out of court [not on the witness stand], (3) for the truth of the matter asserted [to prove the truth of its content].

Let’s see examples of each:

  1. “Ivan told me to go there.”
  2. “I believe Ivan ran the red light.”
  3. “The owner told everyone there is water on the ground.”

 

  1. That is not a statement. It is not hearsay.
  2. That is the witness’s observation or opinion made on the stand. It is not hearsay.
  3. If it is to prove negligence, in other words, whether the owner has noticed the shoppers, not whether there is water on the ground, it is not hearsay.

Not Hearsay:

  1. Verbal Act: the utterance that creates legal consequences, such as making a contract, threats or fraud, is generally not hearsay.
  2. Effect on hearer: If a statement was offered to prove notice, not the truth of its content, the statement is not hearsay.
  3. Instructions are not hearsay.

If it passes the hearsay test, it is hearsay and presumptively inadmissible. The main reason hearsay is not reliable is (1) the statement was not given under oath, (2) the statement cannot be established at cross-examination.

Then, Paciocco J. and Professor Stuesser in The Law of Evidence provided a framework for considering the admissibility of hearsay evidence2:

  1. Hearsay evidence is presumptively inadmissible unless it falls under an exception.
  2. Hearsay exceptions can be challenged by the principled approach.
  3. If hearsay evidence does not fall under a hearsay exception, it may still be admissible if it is tested by the principled approach at voir dire.

Principled Approach means:

  1. Necessity refers to the necessity of the hearsay evidence to prove a fact at issue.3
  2. Reliability refers to whether the evidence was made under the circumstances which substantially negate the possibility that the declarant was untruthful or mistaken.4

Hearsay Exceptions are:

  1. Admission. [Statement made by opposing party]
  2. State of mind [Feeling] or present intention.
  3. Dying declaration. [Actually dying or believing one is dying]
  4. Res gestae. [Including spontaneous declaration, aka, excited utterance, statement made under stress or at core of the event]
  5. Expert opinion.
  6. Declaration against interest. [Statement against declarant’s penal or pecuniary interest; declarant must be unable to testify due to death, insanity, serious illness or missing]
  7. Declarations in the course of duty. [Including written reports]
  8. Public documents [Canada Evidence Act (R.S.C., 1985, c. C-5), s.24]
  9. Declarations of co-conspirators [Must provide progress to the conspiracy]
  10. Prior identification of a witness [For example, a suspect lineup]
  11. Forgotten facts recorded in writing [Witness had knowledge of the record and can verify authenticity of the record but has forgotten its content]
  12. Acquiescence of accused in response to an incriminating declaration by a third party [The accused must present and implicitly admit]

Reference:

  1. R. v. Evans, [1993] 3 S.C.R. 653 at IV. 1. ↩︎
  2. The Law of Evidence, supra note 7, at 127. ↩︎
  3. R. v. Smith, [1992] 2 S.C.R. 915, at 933 ↩︎
  4. Ibid. ↩︎

Leave a Reply

Related Posts

Torts [unfinished]