Hearsay

• Author: David M. Paciocco/Lee Stuesser
• Profession: Justice of the Ontario Court of Justice/Professor of Law, Bond University
• Pages: 103-112

103

CHA PTER 4

HEAR SAY

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

truth of its contents. The essential def‌ining features of hearsay are:

(1) the fact that an out-of-court statement is adduced to prove the

truth of its contents and (2) the absence of a contemporaneous op-

portunity to cross-examine the declarant.

An out-of-court statement includes previou s statements m ade

by a witness who testif‌ies.

An out-of-court statement also 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 ac-

tions are not intended to communicate a message, courts are divided

as to whether or not these statement s fall under the hearsay rule.

1. R ECognizing HEA RSAy

The rule i s simple to state: Absent an exception, hearsay evidence is

not admissible. In other words, hearsay ev idence is presumptively in-

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

The Supreme Cour t of Canada has told us that the essential def‌ining

features of hearsay are: (1) the fact that an out-of-court st atement is

adduced to prove the tr uth of its contents and (2) the absence of a