Hearsay Evidence

Generally, hearsay evidence is inadmissible. Law of hearsay and common law govern a strict exclusionary rule relaxed by a complex array of exceptions. Of course, this does not apply in CFCSA where hearsay information is specifically allowed.

Some common exceptions (not exhaustive) are:

1. Dying Declaration: Statements made by a dying person are usually accepted as being true, based on the assumption that a person does not wish to die with a guilty conscience. Although the reliability of this assumption is questionable, the hearsay evidence is admissible if the following conditions are met:
   • The trial should relate to the murder or manslaughter of the dying person.
   • The statement should relate to the cause of death.
   • The speaker must have known that death was certain and near.
   • That had he lived, he would have been a competent witness.
2. Statements made in the presence and hearing of accused: It is a rule of law that an incriminatory statement, made in the presence of the accused, may be used as evidence against him, if it can be shown that by his words, reaction (including remaining silence) or demeanor he accepted the statement.
3. Res Gestae (Spontaneous Declarations): This term may be interpreted as meaning "part of the thing itself". "the thing" being the criminal act. A statement, declaration, or exclamation which accompanies and explains the criminal act charged, is admissible if it is:
   • an involuntary exclamation made without time for reflection or fabrication, and
   • made either during, immediately before or immediately after the occurrence.

   The statement must be spontaneous and made while influenced by the emotion of the event. It might be made by the accused, the victim or a witness.

Exceptions to the exceptions: Where hearsay evidence is admissible under an exception to the hearsay rule, a judge may still refuse to admit the evidence if its prejudicial effect outweighs its probative value. On the other hand, if hearsay evidence is not admissible under an exception to the hearsay rule, a judge may admit it provided that necessity and reliability are established. This double talk in law allows a judge latitude to determine the admissibility of hearsay evidence. This is authorized per Section 37 (6.1) of Canada Evidence Act that the court may receive into evidence anything that, in the opinion of the court, is reliable and appropriate, even if it would not otherwise be admissible under Canadian law, and may base its decision on that evidence.

Legal issues surrounding the admissibility of hearsay evidence were elaborated in:

1. the appeal of Robert Dennis Starr (Appellant) versus Regina (Respondent) heard in the Supreme Court of Canada on December 3, 1998; and
2. Regina versus Dr. Abdullah Khan in a child sexually assault charge.

[This page was added on November 5, 2009]