Topic 10: Hearsay Evidence
Hearsay evidence, as the name implies, is evidence that a witness has heard as a communication from another party. In addition to verbal communication, legal interpretations of the meaning of hearsay evidence also include other types of person-to-person communication, such as written statements or even gestures intended to convey a message. As defined by John Sopinka in his book, The Law of Evidence, hearsay is:
“Written or oral statements or communicative conduct made by persons otherwise than in testimony at the proceedings in which it is offered, are inadmissible if such statements or conduct are tendered either as proof of their truth or as proof of assertions implicit therein (Sopinka, 1999, p. 173).
Hearsay evidence is generally considered to be inadmissible in court at the trial of an accused person for several reasons; however, there are exceptions where the court will consider accepting hearsay evidence (Thompson, 2013). The reasons why hearsay is not openly accepted by the court include the rationale that:
• The court generally applies the best-evidence rule to evidence being presented and the best evidence would come from the person who gives the firsthand account of events;
• The original person who makes the communication that becomes hearsay, is not available to be put under oath and cross-examined by the defense;
• In hearing the evidence, the court does not have the opportunity to hear the communicator firsthand and assess their demeanor to gauge their credibility; and
• The court recognizes that communication that has been heard and is being repeated is subject to interpretation. Restatement of what was heard can deteriorate the content of the message.
The court will consider accepting hearsay evidence as an exception to the hearsay rule in cases where:
• There is a dying declaration
• A witness is the recipient of a spontaneous utterance
• The witness is testifying to hearsay from a child witness who is not competent Dying Declarations
Dying Declarations
Exceptions to the hearsay rule include the dying declaration of a homicide victim. This type of declaration is allowed since it is traditionally believed that a person facing imminent death would not lie. Justice Eyre in the 1789 English case of R v Woodcock stated:
“The general principle on which this species of evidence is admitted is, that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone: when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; the situation so solemn and so awful, is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice” (R v Woodcock, 1789).
Per the rules of the Canada Evidence Act (Government of Canada, 2015), for a dying declaration to be acceptable to the court, the victim:
• Must be a victim of 1st or 2nd degree murder, manslaughter, or criminal negligence causing death;
• Must be making a statement in regards to the cause of death;
• Must know at the time they make the statement that their death is imminent;
• Must be someone who would have been a competent witness had they lived; and
• Must die of their injuries within a reasonable time after the statement was made.
This is a delicate area because in cases where the victim of a serious assault is in danger of dying, the investigator may have the opportunity to gain evidence by taking a statement from that victim; however, that statement would need to include some acknowledgement by the victim that they believed they are in imminent danger of dying (Sebetic, 1950).
Recipient of a Spontaneous Utterance Recipient of a Spontaneous Utterance
In cases where a witness hears a spontaneous utterance of a victim, the court may accept the witnesses restating of that utterance if, according to Ratten v R (1971):
… the statement providing it is made in such conditions of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused (Ratten v R, 1971).
Hearsay of Statement From a Child Witness Who is Not Competent Hearsay of Statement From a Child Witness Who is Not Competent
In cases where a child witness is not competent or available to provide evidence, the parent or another adult, who has heard a statement from that child, may be permitted to provide that information by way of hearsay to the court.
These circumstances have been illustrated in case law from the case of R v Khan (1990). In this case, the mother of a 3 ½ year old girl was not present when the child was sexually assaulted by her doctor during an examination.
However, immediately after the examination, the child made explicate statements of what happened to the mother and provided descriptions of acts that a child could not have made up. From this case, the court did consider hearsay evidence as an exception to the hearsay rule. The case of R v Khan created what has become known as the
“principled approach” and it allows that hearsay evidence may be admissible if two conditions are proven. These conditions are necessity and reliability.
In R v Khan (1990), the S.C.C. defined necessity as instances where:
• A child was not competent to testify by reason of young age;
• A child is unable to testify;
• A child is unavailable to testify; or
• In the opinion of an expert psychologist providing testimony would be too traumatic and harmful to the child.
In R v Khan (1990), the court defined reliability factors as relating to the credibility of the person’s observations and these included:
• When the hearsay statement was made about the offence;
• The nature of the child’s demeanor;
• The level of the child’s intelligence and understanding; and
• The lack of a reason for the child to have fabricated the story.
Since the adoption of the Khan Rule, the rules of hearsay have expanded on the principled approach that if the evidence is considered necessary to prove a fact in issue at the trial, the hearsay evidence being submitted is found to be reliable (Dostal, 2012). To prove reliability, the crown must submit evidence that demonstrates the circumstantial guarantee of trustworthiness. This definition of reliability was further articulated in R v Smith:
“The criterion of “reliability” or the circumstantial guarantee of trustworthiness — is a function of the circumstances under which the statement in question was made. If a statement sought to be adduced by way of hearsay evidence is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken, the hearsay evidence may be said to be “reliable”, i.e., a circumstantial guarantee of trustworthiness is established” (R v Smith, 1992).
An interesting aspect of hearsay evidence that sometimes confuses new investigators is that during any investigation, the investigator is searching out and retrieving hearsay accounts of events from various witnesses.
From these hearsay accounts, the investigator is considering the evidence and using that hearsay information to form reasonable grounds to believe and take action. This is a totally acceptable and legally authorized process, and, if ever questioned in court regarding the process of forming reasonable grounds on the basis of hearsay, the investigator can qualify their actions by pointing out their intent to call upon the original witness to provide the court with the unfettered firsthand account of events. Investigators are merely the people empowered to assemble
the available facts and information from various sources found in witnesses and crime scene evidence. As an investigator assembles the evidence they are empowered to form reasonable grounds for belief and take actions of search, seizure, arrest, and charges to commence the court process. Once in court, the investigator’s testimony will only relate to the things they have done in person or statements they have heard as exceptions to the hearsay rule while forming of reasonable grounds to take action.