1. Recognizing Hearsay

AuthorDavid M. Paciocco - Lee Stuesser
ProfessionJustice of the Ontario Court of Justice - Professor of Law, Bond University
Pages103-105

Page 103

Hearsay is an out-of-court statement that 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 opportunity to cross-examine the declarant.

An out-of-court statement includes previous statements made 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 actions are not intended to communicate a message, courts are divided as to whether or not these statements fall under the hearsay rule.

The rule is simple to state: Absent an exception, hearsay evidence is not admissible. In other words, hearsay evidence is presumptively inadmissible. The difficulty lies in identifying what is or is not hearsay. The Supreme Court of Canada has told us that 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

Page 104

contemporaneous opportunity to cross-examine the declarant.1The Court, in another case, provided the following simple, yet most workable, definition: Hearsay is (1) an out-of-court statement, (2) which is admitted for the truth of its contents.2In order to understand hearsay one needs to understand the underlying concerns that give rise to the exclusionary rule. The fundamental concern is the inability to test the reliability of hearsay statements. Our adversary system rests upon the calling of witnesses, who give their evidence under oath, whose demeanour can be observed, and who are subject to cross-examination by opposing counsel. These trial safeguards assist in the weighing and testing of the witness’s testimony. Statements made out of court may not be so tested. Justice Charron, writing for the full Court in R. v. Khelawon, provided the following explanation:

Without the maker of the statement in court, it may be impossible to inquire into that person’s perception, memory, narration or sincerity. The statement itself may not be accurately recorded. Mistakes, exaggerations or deliberate falsehoods may go undetected and lead to unjust verdicts. Hence, the rule against hearsay is intended to enhance the accuracy of the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT