What is Hearsay Evidence?

Hearsay evidence is a fundamental concept in Canadian law of evidence. Hearsay evidence is defined as an out-of-court statement offered to prove the truth of the matter asserted. Hearsay evidence is generally inadmissible in court due to concerns about its reliability.

The law surrounding hearsay evidence is of significant importance to criminal law and civil law (such as personal injury, employment or denied long-term disability claims).

The Basics Rules of Hearsay

The hearsay rule is grounded in the principles of fairness and reliability. The rationale against the admissibility of hearsay evidence is that a statement made outside of court does not afford the opportunity for cross-examination on that evidence, which is considered a vital tool for assessing the credibility of evidence in the Canadian court system. The Courts of the various provinces of Canada, all the way up to the Supreme Court of Canada, have consistently affirmed that admitting hearsay evidence at trial can compromise the integrity of the judicial process and should be restricted to exceptional cases.

In the landmark case of R v. Khelawon. [2006] 2 S.C.R. 787, the Supreme Court of Canada outlined the traditional approach to hearsay and noted that the defining features of hearsay evidence are that such evidence was used to prove the truth of its contents and there is no contemporaneous opportunity to allow for cross-examination of the declarant.

The Supreme Court of Canada emphasized that hearsay is presumptively inadmissible unless it falls within a recognized exception. The primary concern is that hearsay lacks the safeguards associated with testimony given under oath, which can be tested through cross-examination.

Exceptions to the Hearsay Rule

Despite the presumptive inadmissibility of hearsay, Canadian law recognizes several exceptions based on the specific facts of each case. These exceptions are based on the premise that certain out-of-court statements carry sufficient reliability and necessity to warrant their admission. Some of the key exceptions include:

  • Statements Against Interest – A statement that goes against the interests of the declarant is generally considered reliable because individuals are unlikely to fabricate self-incriminating statements.
  • Excited Utterances – Statements made in the heat of the moment, under the stress of an event, are often admissible as they are presumed to be spontaneous and trustworthy.
  • Former Testimony – Former testimony is considered to be reliable evidence as that was given under oath or after having affirmed to tell the truth in a proceeding.
  • Business Records – Documents created in the regular course of business can be admissible under certain conditions, as they are deemed reliable.

The Importance of Necessity & Reliability

Just because hearsay evidence may fall within an exception to the rule against hearsay, it may still be excluded from evidence at trial because it lacks the required necessity and reliability a Court requires to base decisions on that evidence.

Necessity requires that the hearsay a party is attempting to enter into evidence would otherwise be unavailable, most often because the witness is unavailable to testify because they cannot be located, are not competent to testify, or are unable to give meaningful evidence (often with respect to children).

As important as the necessity of having the hearsay evidence utilized at trial, that evidence needs to be reliable in order for a Court to find that it passes the threshold where the presumption against hearsay evidence can be overlooked. Some of the factors considered in the reliability of hearsay evidence are:

  • The spontaneity and timing surrounding the creation of the evidence
  • Whether there was any leading questions or prompting that lead to the creation of the evidence
  • Whether or not the evidence has sufficient detail and is consistent
  • Whether the evidence is corroborated by other evidence
  • Whether the evidence is consistent with other testimony

Experienced Vancouver Lawyers

These exceptions show that while hearsay evidence is presumptively inadmissible in Canada, the law recognizes situations where the need for the information and its inherent reliability outweigh the concerns associated with hearsay. An experienced lawyer is required to sufficiently evaluate the impact hearsay evidence can have on a court proceeding.

If you have a legal issue that involves hearsay evidence contact the experienced lawyers at Taylor & Blair LLP today for a consultation.