Hearsay
Hearsay is an out-of-court statement offered in evidence to prove the truth of its contents. The traditional rule is that hearsay is inadmissible — but Canadian law has developed a flexible, principled approach that admits hearsay where it is both necessary and reliable. The principled approach was set out in R v Khan, 1990 and R v Smith, 1992 and has been refined in many subsequent cases.
Mass Tsang's criminal lawyers handle hearsay challenges as a routine part of trial preparation. For more, see our blog post on evidence in criminal trials.
Why hearsay is excluded
The hearsay rule reflects three concerns: (1) the declarant is not under oath; (2) the declarant is not subject to cross-examination; and (3) the trier of fact cannot observe the declarant's demeanour. Together, these concerns undermine the reliability of statements made outside the trial. The traditional rule sought to protect against unreliable evidence by excluding it categorically.
Traditional exceptions
The common law developed many categorical exceptions to the hearsay rule — admissions by a party, dying declarations, statements in furtherance of a conspiracy, declarations against interest, statements of present sense impression, business records (now governed by the Canada Evidence Act), and others. These exceptions arose from circumstances where the courts considered the underlying statements sufficiently reliable to admit.
The principled approach
Where a hearsay statement does not fit within a traditional exception, it may still be admitted under the principled approach if the proponent establishes: (1) necessity — the evidence cannot reasonably be obtained from the declarant in court; and (2) reliability — circumstantial guarantees of trustworthiness make the statement reliable, or the trier of fact has adequate means to assess reliability (often through corroborating evidence).
Hearsay in practice
Hearsay issues arise constantly in criminal trials. Out-of-court identification statements, 911 calls, police interviews of witnesses, business records, surveillance reports, expert hearsay about technical processes — all can involve hearsay analysis. K.G.B. statements are a particularly important application: prior inconsistent statements of recanting witnesses can be admitted for their truth under the principled approach where the statement was videotaped, taken under oath, and subject to cross-examination.
Strategic considerations
Hearsay analysis often determines whether a case proceeds. Where the Crown depends on hearsay (an unavailable witness, a statement by a co-accused), exclusion can end the prosecution. Defence counsel must scrutinize every Crown statement for hearsay implications and prepare to challenge admissibility where appropriate.
Related glossary terms
