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Canadian Criminal Evidence/Hearsay/Traditional Exceptions

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Traditional Categories

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Statements that fall within the traditional categories of hearsay exceptions are presumptively admissible. They can nevertheless be challenged under the principles of necessity and reliability. [1]

The traditional categories of exceptions consist of the following:

  1. Where the statement is an admission by an accused person
  2. When the statement is made against the declarator's interest
  3. When it is made in the course of the declarator's duty
  4. When the statement is part of a public or governmental document
  5. Dying declaration
  6. Statements made when the declarator was in a state of shock or surprise (Res Gestae)
  7. Statements describing the declarator's physical or psychological condition
  8. Sworn testimony from a previous hearing
  9. Past recollection recorded
  10. Statement conveys "state of mind"
  11. Statement conveys "present intentions"
  12. Statutory exceptions
  13. Statement is part of the narrative of the evidence


  1. ↑ R v Starr [2000] 2 SCR 144
    R v Mapara 2005 SCC 23 [1]

Admissions of the Accused

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Generally, admission include “any statement made by a declarant and tendered as evidence at trial by the opposing party.”[1]

Any admission by an accused is admissible as provided that its probative value outweighs its prejudicial effect. [2]

Admission made by the accused as well as statements adopted by the accused in an intercepted communication is admissible as a hearsay exception.[3]

  1. ↑ R. v. Violette, [2008] B.C.J. No. 2781(S.C.) at 63
  2. ↑ R. v. Terry, [1996] S.C.J. No. 62 at 28
  3. ↑ R v Violette [2008] B.C.J. No. 2781(S.C.) at 65

Statement made against the declarator's interest

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Adoptive Admissions

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A categorical exception to the hearsay rule is where the accused adopts a hearsay statement by words, conduct, action or demeanor.[1]

The exception involves two elements:[2]

  1. whether there is “evidence from which the Court could reasonably infer that the accused by their behaviour acknowledged their guilt?” [3]
  2. whether such an inference should be drawn?

The inference should only be drawn where it is a sufficient “foundation” to so as to reasonably infer that the accused intended to accept “the statement as to make it in whole or in part his own” [4]

A speculative interference based on ambiguous conduct is not sufficient to fit the exception. [5]

A foundation requires at a minimum that:[6]:

  1. the statement must have been made in the accused’s presence, in circumstances such that the accused would be expected to respond;
  2. the accused’s failure to respond could reasonably lead to the inference that, by his silence, the accused adopted the statement; and
  3. the probative value of the evidence outweighs its prejudicial effect.

Mere presence of the accused at the time of the statement is not sufficient to prove an adoption of the statement.[7]

Instructions to the jury on the issue of whether the accused agreed to the statement should include informing the jury the following:[8]

  1. whether the accused, by his conduct, adopted the statements made in his presence and only to the extent that they were adopted should the jury accept them as true;
  2. consider all of the circumstances under which the statement was made
  3. “if in their view the accused did not assent [...] to the correctness of the statements made in his presence, these statements would have no evidentiary value [...] and should be entirely disregarded”
  1. ↑ R v Stein, [1928] SCR 553 at 558 (“It is only when the accused by "word or conduct, action or demeanour" has accepted what they contain, and to the extent that he does so, that statements made by other persons in his presence have any evidentiary value …”)
  2. ↑ R v Dimetro (1945), 85 CCC 135 at para 4 (Ont CA)
  3. ↑ See also R v Warner 1994 CanLII 842 (ON CA), (1994), 21 O.R. (3d) 136 at 144-145(Ont CA)
  4. ↑ R v Harrison, [1946] 3 DLR 690, 62 BCR 420 at 430 (BCCA)
  5. ↑ R. v. Briscoe, 2012 ABQB 158, a nod in response to an utterance of “I helped with [a murder]”
  6. ↑ R v Tanasichuk, 2007 NBCA 76 at para 110
  7. ↑ R v Dubois, (1986), 27 CCC (3d) 325 at 341-342 (Ont CA)
  8. ↑ R. v. Tanasichuk, 2007 NBCA 76 (CanLII)

Past Recollection Recorded

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Where a witness has testified that he cannot recall core details of a statements made but that she told the truth whenever speaking to them. The Court may admit the notes or document if it is satisfied that they meet the Wigmore criteria: [1]

  1. the past recollection must have been recorded in some reliable way;
  2. at the time, it must have been sufficiently fresh and vivid to be probably accurate;
  3. the witness must be able now to assert that the record accurately represented his knowledge and recollection at the time. The usual phrase requires the witness to affirm that he “knew it to be true at the time”; and
  4. the original record itself must be used, if it is procurable.

In practice counsel should establish:[2]

1) that the witnesses memory is exhausted and cannot answer the question;
2) that a record was made by the witness or on behalf of the witness;
3) the record was made near the time that the information was learned;
4) the information was fresh in their mind at the time;
5) the information was recorded from what they knew at the time and was done as accurately as possible.

Counsel can then asks the record to be put in as an exhibit.

An example would be where asking a witness to recall a licence plate number that they observed and wrote down in a statement. This statement or note would have been made at a time when the information was fresh in their mind and they made an effort to be accurate.

The witness will be asked about whether they recall the licence plate number. Often they will not recall the number by heart, this will prompt a request to introduce past recollection recorded. Counsel should go through questions establishing the lack of memory; the existence of the record; the circumstances of its creation; and the accuracy of its contents.

See also: Present Memory Revived

  1. ↑ adopted in R. v. Fliss 2002 SCC 16 at 244 [2]
    see also: R. v. Pilarinos, [2002] B.C.J. No. 1153 (BCSC) at paras. 7 – 12 [3]
    R. v. Meddoui, 1990 CanLII 2592 (AB CA)[4]
    R. v. Wilks, 2005 MBCA 99 [5]
    c.f. present memory revived
  2. ↑ R. v. McCarroll, 2008 ONCA 715 - sets out four key critera(CanLII)

State of mind

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A statement of a declarant can be adduced into evidence as a hearsay exception where it explicitly declares the state of mind of the declarant. [1] Where the declaration can infer the state of mind, it is also admissible but not as a hearsay exception, but rather as circumstantial evidence inferring the state of mind.[2]

  1. ↑ R. v. Candir, 2009 ONCA 915, at para. 56 [6]
    R. v. P.(R.), (1990), 58 C.C.C. (3d) 334 (Ont. H.C.J.) para. 16
  2. ↑ supra.

Spontaneous utterances / res gestae

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Spontaneous or excited utterances are a class of exception to the hearsay rule. An utterance falls in this category where the evidence can characterize it as being a spontaneous exclamation made without premeditation or artifice and before the speaker had time to concoct something.[1]

It has been characterized as words that are contemporanous with some action. Statements are admitted at times as "words brigaded to action".[2]

Requirements to the exception usually include:[3]

  1. utterance made soon after underlying offence
  2. speaker was in state of upset or trauma
  3. enough probative value to outweigh any prejudice

The utterance does not need to be strictly contemporaneous "so long as the stress or pressure created by it is ongoing".[4]

  1. ↑ See R. v. Schwartz (1978) NSR (2d) 335 at para. 15
    R. v. Magloir 2003 NSCA 74
    R. v. Slugoski, [1985] BCJ 1835
    R. v. Khan, (1988), 42 C.C.C. (3d) 197 at p. 207, aff'd on other grounds 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531
  2. ↑ R. v. Ly (1996), 193 A.R. 149; [1996] A.J. No. 1089 (C.A.) at para. 3
  3. ↑ R. v. Hamilton, 2011 NSSC 305 at para. 20
  4. ↑ See R. v. Khan, (1988), 42 C.C.C. (3d) 197 at p. 207, aff'd on other grounds 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531

Co-Conspirators

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The co-conspirators' exception to hearsay permits the admission of out-of-court statements made by a co-conspirator.

The Crown must prove:

  1. that there was a conspiracy
  2. that the accused was a member of the conspiracy
  3. the utterance was in furtherance of the conspiracy.

[1]

This exception is not limited or obsolete despite the overlap with the principled approach.[2]

The availability of the co-conspirator is not determinative of whether the exception applies.[3]

  1. ↑ See R. v. Carter, 1982 CanLII 35 (SCC), [1982] 1 S.C.R. 938 R. v. Mapara, 2005 SCC 23 (CanLII), [2005] 1 SCR 358 at para. 8 (“Statements made by a person engaged in an unlawful conspiracy are receivable as admissions as against all those acting in concert if the declarations were made while the conspiracy was ongoing and were made towards the accomplishment of the common object”
  2. ↑ Mapara
  3. ↑ R. v. N.Y., 2012 ONCA 745 (CanLII)

Dying declaration

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Dying declaration: A statement made by a person who is certain they are about to die Only applies in criminal cases Must be made when the speaker has lost all hope of living Must not include hearsay statements Must be directed at cause of the death

Declarator's Physical or Psychological Condition

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Sworn testimony from Previous Hearing

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Present and Future Intentions

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Similar to state of mind exception, it is permissible to admit statements of a witnesses' future intentions.[1]

  1. ↑ Chang 2003 173 CCC 3d 397

In Course of the Declarator's Duty

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Public or Governmental Document

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See Canadian Criminal Evidence/Documentary_evidence#Admissibility_of_Specific_Types_of_Documents

Business Records

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A record is admissible as hearsay where it is a business record. A business record is a record that is required to kept accurate as part of the normal course of business. The document can be admitted under the Canada Evidence Act or common law.

See Canadian Criminal Evidence/Documentary_evidence#Business_Records -- R v Wilcox 2001 NSCA 45

Documents in Possession

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Documents that are found to be in actual or constructive possession of the accused may be admitted as hearsay. The documents can be used to show knowledge, participation, or state of mind. [1]

Documents in possession are admissible for the truth of its contents where the accused has shown “recognition, adoption or acting upon the documents“[2]

  1. ↑ See R v Wood 2001 NSCA 38 at 30
  2. ↑ R. v. McCullough, 2001 SKQB 449

Narrative

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Strictly speaking, narrative is not a traditional hearsay exception, and is not fully hearsay at all since it is not being proffered for the truth of its contents.

It is admissible on the basis that it provides context and greater understanding to the trier of fact of the details of the investigation. It is often useful in sexual assault cases in order to determine credibility.

See R v Assoun, 2006 NSCA 47

In the context of recorded phone calls, the “nature of the business” of the calls is not hearsay.[1]

  1. ↑ R. v. Williams, [2009] B.C.J. No. 1518

Preliminary Inquiry / Trial evidence

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Under s. 715 [7], evidence from either a previous trial or preliminary inquiry may be admitted into evidence where the witness refuses to testify, is dead, is physically or mentally ill, or is out of the country.[1]

It must be proven that the evidence was taken in front of the accused. If so, it is admissible unless the accused didn't have full opportunity to cross examine.[2] There is an exception to this rule under s.715(2.1), where the accused was excused under s. 537(1)(j.1)

See R v Alcantara, 2012 ABQB 219[3]

  1. ↑ See also R. v. Potvin, [1989] 1 SCR 525
  2. ↑ see s. 715
  3. ↑ prelim evidence was admitted

Video Statement of Under 18 Year Old

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Witnesses under the age of 18 who give video-taped statements shortly after the alleged incident may have their statements put in for the truth of their contents under s. 715.1 where the witness is able to adopt the statement in court. Once a video statement is admitted under s.715.1, the absence of the ability to cross-examine the witness only goes to the weight of the evidence and cannot be used to argue its admissibility.[1]

Section 715.1 states:

Evidence of victim or witness under 18
715.1 (1) In any proceeding against an accused in which a victim or other witness was under the age of eighteen years at the time the offence is alleged to have been committed, a video recording made within a reasonable time after the alleged offence, in which the victim or witness describes the acts complained of, is admissible in evidence if the victim or witness, while testifying, adopts the contents of the video recording, unless the presiding judge or justice is of the opinion that admission of the video recording in evidence would interfere with the proper administration of justice.

Order prohibiting use
(2) The presiding judge or justice may prohibit any other use of a video recording referred to in subsection (1).

R.S., 1985, c. 19 (3rd Supp.), s. 16; 1997, c. 16, s. 7; 2005, c. 32, s. 23.


– CCC

This section was found to not violate section 11(b) and 7 of the Charter on account that the discretion remains with the judge.[2]

Factors to consider include:[3]

  1. The form of questions used by any other person appearing in the videotaped statement;
  2. any interest of anyone participating in the making of the statement;
  3. the quality of the video and audio reproduction;
  4. the presence or absence of inadmissible evidence in the statement;
  5. the ability to eliminate inappropriate material by editing the tape;
  6. whether other out‑of‑court statements by the complainant have been entered;
  7. whether any visual information in the statement might tend to prejudice the accused (for example, unrelated injuries visible on the victim);
  8. whether the prosecution has been allowed to use any other method to facilitate the giving of evidence by the complainant;
  9. whether the trial is one by judge alone or by a jury; and
  10. the amount of time which has passed since the making of the tape and the present ability of the witness to effectively relate to the events described.

See also: R v Meddoui 1990 CanLII 2592 (AB CA), (1990), 61 C.C.C. (3d); R v F(C) 1997 CanLII 306 (SCC), [1997] 3 S.C.R. 1183

  1. ↑ R. v. R.G.B., 2012 MBCA 5 at 42
  2. ↑ R. v. D.O.L. 1993 CanLII 46 (SCC), (1993), 85 C.C.C. (3d) 289
  3. ↑ R. v. L. (D.O.), [1993] 4 SCR 419 at 463; R. v. F. (C.C.), [1997] 3 SCR 1183

Voluminous Document Exception

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An exception to hearsay is the "voluminous document exception" first outlined by Wigmore.

According to Wigmore, the exception applies where:[1]

  1. there are a very large number of detailed business records that would be impractical to present to the court;
  2. a competent witness has examined the documents and summarized them; and
  3. the documents have been made available to the other side.

Where the criteria are met, the summary can be admitted without putting in the original records as evidence.[2] The exception is not applicable where the work product "involve[s] interpretations that may be the subject of legitimate debate".[3]

See also Canadian Criminal Evidence/Documentary Evidence#Summaries of Voluminous Documents

  1. ↑ R. v. Agyei, [2007] O.J. No. 3914 at para 26
  2. ↑ R. v. Lee, 2011 NSPC 5 (CanLII) at 20
  3. ↑ Lee at 19-20
    R. v. George, [1993] A.J. No. 798 (Alta. P.C.)
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