A Primer On Hearsay

A thorough understanding of hearsay is important for all litigators. This article addresses some of the basic principles of hearsay.

What is Hearsay?

One of the leading cases on hearsay is the Supreme Court of Canada's decision in R. v. Khelawon, [2006] 2 S.C.R. 787.

The Court noted that the essential defining features of hearsay are:

an out-of-court statement is adduced to prove the truth of its contents, and there is no contemporaneous opportunity to cross-examine the declarant. Hearsay evidence is presumptively inadmissible. The key concern is the inability to test the reliability of hearsay statements. Moreover, untested hearsay evidence may be afforded more weight than it deserves.

As stated in R. v. Khelawon, our adversary system puts a premium on 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.

In R. v. Baldree, [2013] 2 SCR 520, the Supreme Court of Canada outlined the following specific concerns with hearsay:

First, the declarant may have misperceived the facts to which the hearsay statement relates. Second, even if correctly perceived, the relevant facts may have been wrongly remembered. Third, the declarant may have narrated the relevant facts in an unintentionally misleading manner. Finally, the declarant may have knowingly made a false assertion. The Court indicated that the opportunity to fully probe these potential sources of error arises only if the declarant is present in court and subject to cross-examination.

As an example, in a personal injury trial, a plaintiff cannot simply file a letter from his or her pre-accident employer stating that the plaintiff was an excellent employee who would have been promoted to a senior role were it not for the accident. The information in the letter is hearsay if it is tendered to prove the plaintiff's damages. Without calling the employer as a witness, his or her evidence cannot be tested.

As another example, in a trial involving a dispute over liability for a car accident, the plaintiff cannot say: "A witness, Ms. Jones, told me that she saw the defendant run the red light". If the plaintiff wants to adduce such evidence to prove liability, Ms. Jones must be called as a witness.

Traditional Exceptions to the Hearsay Rule

There are exceptions to the hearsay rule. These exceptions are in place to facilitate the search for truth by admitting into evidence hearsay statements that are...