Hearsay

• Author: David M. Paciocco/Lee Stuesser
• Pages: 95-105

Hearsay is an out-of-court statement that is offered to prove the

truth of its contents.

An out-of-court statement includes an “implied statement,”

which is any assertion revealed through actions and not words.

Where the actions are intended to communicate a message, they

are treated the same as a verbal or a written statement. Where the

actions are not intended to communicate a message, courts are

divided as to whether or not these statements fall under the

hearsay rule.

An out-of-court statement also includes previous statements

made by a witness who testifies.

1. RECOGNIZING HEARSAY

The rule is simple to state: Absent an exception, hearsay evidence is not

admissible. The difficulty lies in identifying what is or is not hearsay.

Unfortunately, there is no agreed upon definition. The Supreme Court

of Canada has generally declined to adopt a comprehensive definition of

hearsay because of the difficulty in capturing the breadth of circum-

stances that give rise to hearsay evidence.1A variety of definitions have

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1 See R. v. Starr (2000), 147 C.C.C. (3d) 449 at 514 (S.C.C.).

HEARSAY

chapter 4