Hearsay

• Author: Matthew Gourlay/Brock Jones/Jill D. Makepeace/Glen Crisp/Renee Pomerance
• Pages: 175-248

CHAPTER 6

HE ARSAY

I. Introduction ..................................................... 

A. What Is Hearsay? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

B. Express Versus Implied Hearsay ................................. 

C. The Hearsay Rule.............................................. 

D. The Rationale for Exceptions.................................... 

II. The Approach to Admissibility ...................................... 

A. Debating and Defining Purpose ................................. 

B. Framework for Admissibility Overlap ............................. 

C. The Principled Exception ....................................... 

. The Necessity Criterion...................................... 

. The Reliability Criterion...................................... 

(A) Procedural Reliability .................................... 

(B) Substantive Reliability.................................... 

. Residual Discretion ......................................... 

D. Appeal Considerations ......................................... 

III. Types of Hearsay Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

A. Declarations Against Interest .................................... 

. Declarations Against Pecuniary or Proprietary Interest ........... 

. Declarations Against Penal Interest............................ 

B. Dying Declarations ............................................ 

C. Exceptions Derived from Res Gestae Principles .................... 

. Spontaneous Utterances .................................... 

. Declarations Accompanying and Explaining Relevant Acts ....... 

. Statements Reflecting State of Mind, Physical Condition,

orIntention................................................ 

D. State of Mind Beyond Res Gestae................................ 

E. Admissions ................................................... 

. Admissions by Adoption ..................................... 

. Admissions Versus Confessions............................... 

F. Declarations in Furtherance of a Common Unlawful Purpose

(Including Co-Conspirators) .................................... 

. The Carter Framework ...................................... 

(A) The Existence of an Ongoing Unlawful Common Purpose .... 

175

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I. INTRODUCTION

The law of hearsay is an area whe re the principled approach emerge d in a rather dra-

matic fashion. Historically, the exceptions to the hear say rule were rigid pigeon-holes,

“a set of ossified judicially created categories,” as Lam er J put it in Smith.1 The early case

of Khan2 marked the beginning of a revolution that sh ifted the law away from categories

and toward a flexible, principled app roach. For a time, it was not clear whether Khan

was just a case about children’s eviden ce; however, subsequent cases, such as Smith,

KGB, and U(FJ), made it clear that this a pproach extended well beyond stateme nts of

children and applied to all manner of declarations.3 This was, indeed, a revolution—one

that has continued to develop incrementally over tim e.

Despite the overarching trend toward more, rather than le ss, evidence, courts

have swung back and forth bet ween liberal and restrictive interp retations of the prin-

ciples. For example, we have seen var ying approaches to the quest ion of whether

1 Rv Smith, [1992] 2 SCR 915 at 93 0.

2 Rv Khan, [1990] 2 SCR 531 [Khan 1990].

3 Smith, supra note 1 at 930; Rv KGB, [1993] 1 SCR 740; Rv U(FJ) [1995] 3 SCR 764.

(B) The Accused Must Be a Member of the Unlawful

Common Design........................................ 

(C) That the Declaration Was Made in Furtherance of the

Common UnlawfulDesign ............................... 

. The Two-Person Common Design............................ 

. Discussion of the Principled Approach ........................ 

(A) Necessity .............................................. 

(B) Reliability .............................................. 

(C) Residual Discretion and Trial Fairness ...................... 

G. Declarations of Testifying Witnesses.............................. 

. Past Recollection Recorded .................................. 

. Prior Consistent Statements.................................. 

(A) The Presumptive Exclusionary Rule ........................ 

(B) Prior Consistent Statements Admissible as Hearsay .......... 

(C) Prior Consistent Statements Admissible for Limited Purposes ... 

. Prior Inconsistent Statements ................................ 

(A) Opportunity for Cross-Examination........................ 

(B) Presence of Caution and Solemn Oath/Affirmation .......... 

(C) Video Record ........................................... 

(D) Assessing Admissibility ................................... 

. Prior Identification .......................................... 

. Prior Testimony ............................................ 

. Recorded Statements of Children and Vulnerable Witnesses...... 

H. Investigative Narrative.......................................... 

I. Documentary Evidence ........................................ 

IV. Summary ........................................................ 

176 MODERN CRIMINAL EVIDENCE

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corroborative evidence can buttre ss threshold reliability. The Supreme Court of Can ada

seemed to close the door on the use of corrob oration in Starr, reversed that position

in Khelawon, and then returne d to a restrictive approach in Bradshaw.4 The swinging

pendulum marks the tension bet ween the desire to expand the evidence avail able to

the trier of fact on the one han d, and the need to recognize and protect against hearsay

dangers on the other.

We also see a tension between cer tainty and flexibilit y in this area. The traditional

exceptions continue to inform admissibility, unless they are sh own to be inconsistent

with the principled approach. Th e categorical exceptions allow for some degree of

certainty and predict ability, yet on their own they are underinclusive. T he principled

approach offers flexibilit y, but reduces the predict ability of evidentiary rulings.

A. WHAT IS HEARSAY?

Not all declarations made out of cour t are hearsay. What determines whether a state-

ment is hearsay is the purpose for w hich it is advanced. A statement is hearsay when it

is offered as proof that what was decla red was true. The second defining fe ature of a

hearsay statement is the absence of a contemp oraneous opportunity to cross-examine

the declarant and test the truthful ness of the statement.5

Often the declarant of the hea rsay statement will not be a witness in the proceeding.

Their out-of-court statement is narrated in court by the p erson who received it at the

time it was made. However, there are many situations where an o ut-of-court statement

made by a testifying witness is ten dered as proof that their prior statement was true. For

example, where a party s eeks to prove that a prior statement of a recanting witness was

the truth, the prior statement is he arsay and presumptively inadmissi ble. That scenario

is the subject of an exception to the hearsay rule , described below.6

Hearsay statements come in dif ferent forms. A typical example i s where a witness

testifies to what another person told them . Oral assertions may al so be captured by

audio or video recording, which may the n be played in court. While hearsay statements

are often verbal, written statem ents in hard copy or digital form may also con stitute

hearsay. A more nuanced form of hearsay is condu ct. However, conduct will only con-

stitute hearsay where a person do es something with the intention that it be receive d

as an assertion or communic ation. While oral and written assertions will always have a

communicative purpose, non-verbal con duct may or may not intend to communicate

anything.7 Some examples of asser tive conduct and their potential meanings include:

• nodding the he ad to indicate agreement,8

• shrugging the s houlders to signify uncertainty,9

4 Rv Starr, 2000 SCC 40; Rv Khelawon, 2006 SCC 57; Rv Bradshaw, 2017 SCC 35.

5 Khelawon, ibid at paras 56-57; Bradshaw, ibid at para 1; Rv Magloir, 2003 NSC A 74 at para 21.

6 KGB, supra note 3 at 763-64; Rv Devine, 2008 SCC 36.

7 Rv Baldree, 2013 SCC 35 at paras 62-6 6; Starr, supra note 4 at para 161.

8 Chandrasekera v The King, [1937 ] AC 220 (PC).

9 Rv DMD, 2019 BCSC 1027 at para 36; Rv Bad gerow, 2014 ONCA 272 at para 107, leave to appeal to SCC

refused, 2014 CanLII 62241.

Chapter 6 Hearsay 177

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