Hearsay

• Author: David M. Paciocco/Lee Stuesser/Palma Paciocco
• Pages: 135-232

135

CHA PTER 4

HEARSAY

1. R ECOGNIZING HEAR SAY

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 LAW OF EVIDENCE136

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].