AuthorDavid M. Paciocco/Lee Stuesser/Palma Paciocco
Hearsay is an out-of-court statement of fact that is offered at a
court proceeding to “prove the truth of its contents.” In effect, the
party presenting the out-of-court statement seeks to have it treated
as if it were testimony coming from a witness in the proceeding,
without calling as a witness the person who claims to know the fact
asserted. Ordinarily, in deciding whether to accept a statement of
fact as true, triers of fact rely heavily on their observations of the
witness making the statement unde r oath, and on the answers the
witness provides when challenged during cross-examination about
the accuracy of that statement. Since it is not possible to test the
accuracy of hearsay in these ways, hearsay is inadmissible unless
an exception to the hearsay r ule applies.
Even where the statement was made during testimony in
another proceeding, if it is offered at a subsequent court proceed-
ing to prove the truth of its contents, then it is considered to be an
out-of-court statement for the purpose of the hearsay rule, since
many of the dangers associated with hearsay evidence are present
when prior testimony from one hearing is offered as an out-of-court
statement at another hearing.
The rule is simple to state: Hearsay ev idence is presumptively inadmis -
sible.1 In other words, absent an exception to the hearsay r ule, evidence
must not be received or used for a hearsay purpose. The challenge is in
identifying whether ev idence is or is not being offered as hearsay.
In R v Evans, the Supreme Court of Canad a provided this simple,
yet most workable, definition: Hearsay is (1) an out-of-court statement
(2) that is admitted for the truth of its contents.2 The concept of admit-
ting evidence for the truth of its contents may be unfamili ar, but it is
easily understood. An out-of-court statement wil l be offered as “proof
of the truth of its contents” where the part y presenting it seeks to have
that statement treated as t hough it were testimony offered by a witness
in the case to est ablish a fact. For example, assume a witnes s heard
another person the “declarant” make this statement out-of-court:
“The mayor is taking kickbacks from construction companies.” If the
testimony of the witnes s about what they heard were offered in a crim-
inal prosecution of the mayor for corruption offences in order to prove
that the mayor took kickbacks, then that out-of-court statement would
be presented as proof of the truth of its contents, and it would consti-
tute hearsay. Assume, however, that the mayor is suing the declarant
for libel and simply wants to prove that the declar ant had said the false
and libellous words, “The mayor is taking k ickbacks from construction
companies.” In that case, the statement would not be offered as proof of
the truth of its contents, and it would not constitute hearsay.
In order to understand hearsay, one needs to understand thos e
hearsay dangers t hat give rise to the exclusionar y rule. This under-
standing will assist not only in recogniz ing hearsay, but also in identi-
fying the proper limits of the exceptions to the rule. The fundamental
concern lies in the inherent difficulty of testing the accuracy of the
factual claim s made in out-of-court statements.3 Our adversary system
places a premium on the calli ng of witnesses, who give their ev idence
under oath, whose demeanour can be obser ved, and who are subject
to cross-examination by opposing counsel. These methods for promo-
ting and evaluating t he accuracy of information are not available if the
declarant is not the witness, creating the real r isk that the trier of fact
may be getting inaccurate information. When a witness who claims to
know a fact testifies to t hat fact in court, they can be cross-examined
about how they know it, and the cross-examiner can explore whether
the witness h as reason to lie. This cross-exami nation provides the trier
of fact with data for deciding whether to believe the fact the witness
1 R v Baldree, [2013] 2 SCR 520 at para 2 [Baldree].
2 R v Evans, [1993] 3 SCR 653 at 661 [Evans].
3 Baldree, above note 1 at para 31.
Hearsay 137
claims. However, it is generally the case t hat if the testify ing witness
only heard another person ass ert that fact, then that te stifying w itness
cannot provide the trier of fact w ith the information they require to
rationally determine whether to bel ieve the fact. The declarant the
person who claims to know t he fact first-hand — is the one who should
be testify ing about it.
Courts and commentators have identif ied four specific concerns
that relate to hearsay st atements: perception, memory, narration, and
si nc er it y.4 Justice Fish, in R v Baldree, summa rized the concerns in the
following terms:
First, the declar ant may have misperceived t he facts to which the
hearsay stateme nt relates; second, even i f correctly pe rceived, the rel-
evant facts may h ave been wrongly re membe red; third , the declarant
may have nar rated the relevant facts in a n unintentionally misleading
manner; and fin ally, the declarant may have kno wingly made a false
assertion. The opportunity to fully probe the se potential sources of
error aris es only if the declara nt is present in court and subject t o
cross- examin ation.5
To illustrate these hearsay concern s and the need for cross-examin-
ation to address them, consider the following e xample:
In a prosecution for drunk-dr iving, a witness (W) testifies th at a passenger
(P) in the car driven by the accused stated that “t he accused had been drink-
ing and was drun k.” Assume that P is not called to testify.
W is testify ing as to P’s out-of-court statement that the accused had
been drink ing and was drunk, a nd that statement is being offered for
its truth. W ’s testimony is hearsay. Why? Consider on what matters
you might cross-examine W. The cross-examination would be limited
to the accuracy of what W heard P say — a largely futile exercise t hat
would not get to the heart of the issue, which is the accurac y of what is
contained in P’s statement. It is P, as the maker of the statement, who
should be cross-examined, since that process could exam ine multiple
aspects of the statement. Perception: What did P obser ve the accused
drinking? How did P know it was alcohol? Over what period of time
did P observe the accuse d? Memory: Had P been drink ing as well? If so,
how might this affect P’s ability to rec all? Narration: Why did P describe
the accused as dr unk? What actions by the accused or what about the
accused’s appearance led to this conclusion? Could these actions or
that appearance be consistent with other causes? Sincerit y: What is
4 Ibid; R v Khelawon, [2006] 2 SCR 787 at para 2 [Khelawon].
5 Baldree, above note 1 at para 32 [emphasis in ori ginal].

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