Canadian Criminal Evidence/Hearsay

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Introduction[edit]

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.

The hearsay rule has stated as:[2]

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 hs been addressed in several cases.[3]

Courts generally do not allow such evidence as it is generally said to be untrustworthy for several reasons:[4]

  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.
  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.[5]
  3. There is no opportunity to observe the demeanour of the declarant, thus making it harder to assess the quality of the evidence.
  4. The introduction of such evidence will lengthen trials.

These are known as the hearsay dangers.

  1. R. v. Evans, 1993 CanLII 86 (SCC), [1993] 3 S.C.R. 653; [1993] S.C.J. No. 115 at para 16 ("An out-of-court statement which is admitted for the truth of its contents is hearsay.")
  2. Sopinka, Lederman and Bryant, The Law of Evidence in Canada, Butterworths, 2d ed. ss.6.2
  3. R. v. Evans, [1993] 3 S.C.R. 653; R. v. Smith, [1992] 2 S.C.R. 915; R. v. Hawkins, [1996] 3 S.C.R. 1043 at 153
  4. Spokina, supra, at 175
  5. R v Abel 2011 NLTD 173

Elements of Hearsay[edit]

Where hearsay potentially arises there are four elements to consider if the rule is 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]

  1. R v Baldree 2012 ONCA 138 at 46
  2. R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 56
  3. R. v. Evans, 1993 CanLII 86 (SCC), [1993] 3 S.C.R. 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

Application of Hearsay Rules[edit]

Computer Records[edit]

The absence of data in a computer system is not generally hearsay. For example, enquiries 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

Opinion Evidence[edit]

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

Phone Calls[edit]

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 at para. 7
    R v Edwards,1994 CanLII 1461 (ON CA) at pp. 248-249
    R. v. Nguyen 2003 BCCA 556 (CanLII), (2003), 180 C.C.C. (3d) 347 (B.C.C.A.), at para. 17
    R. v. Ly, 1997 CanLII 330 (SCC), [1997] 3 S.C.R. 698, at para. 3
    R. v. Cook (1978), 46 C.C.C. (2d) 318 (B.C.C.A.), 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 - admissible b/c not hearsay(CanLII)

Others[edit]

See also Canadian Criminal Evidence/Credibility/Prior Consistent Statements - a form of hearsay

Topics[edit]

Case Digests[edit]