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| Patrick Ducharme |
One of the trickiest areas of our evidentiary rules relates to the recognition of and treatment of hearsay evidence. Hearsay evidence is presumptively inadmissible unless an exception to the hearsay rule applies. Inadmissibility is generally determined in circumstances where the evidence is thought to be unreliable. In fact, the whole basis of the rule against hearsay evidence is that it is essentially unreliable.
The essential defining features of hearsay are:
1. An out-of-court statement adduced in court to prove the truth of the contents of that statement, and
2. The absence of a contemporaneous opportunity to cross-examine the maker of that statement.
Over many years our courts created what might be described as traditional exceptions to the exclusionary rule. Each and every one of them had the same basis for making an exception, that is, the statement for some particular reason was inherently reliable. But more recently, since the Supreme Court of Canada’s decision in Kahn, hearsay evidence that does not fall under a traditional exception may still be admitted under the principled exception approach if indicia of reliability and necessity are established on a voir dire.
The seminal case from the Supreme Court of Canada on the topic of hearsay is R. v. Khelawon1. In this case the court decided that any applicant establishing the reliability requirement must demonstrate first that the statement is inherently reliable because of the circumstances, or, that no real concern arises from the fact that the statement is presented in hearsay form because its truth and accuracy may still be tested by means other than contemporaneous cross-examination.
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure Volume 2, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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