The rule against hearsay evidence is that written or oral statements made by individuals outside of court are inadmissible if they are introduced either as proof of their truth or of the assertions contained in them, unless an exception to the hearsay rule applies. A working definition of the hearsay rule can be synthesized as follows: Written or oral statements, or communicative conduct made by a person otherwise than in testimony at the proceeding 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. An example of a hearsay statement would be something like the following: To prove John was in the restaurant the lawyer asks the witness, “What did Jane tell you about John being in the restaurant?” Since the witness’ answer depends on an out-of-court statement that Jane made, and Jane is not available to be cross-examined on it and it is being proffered as proof that John was in the restaurant, it is hearsay. The reason behind the valid objection to this evidence is that Jane, the person who made the statement, is not in court and as such she is protected from cross-examination.
In the past there were several categories of exceptions to the hearsay rule, including declarations against interest, declarations made in the course of a business duty, declarations as to reputation, declarations as to pedigree and family history, statements contained in ancient documents as evidencing a proprietary interest in land, statements in public documents, statements indicating bodily or physical states, statements indicating an existing mental or emotional condition, state of mind or intention, declarations accompanying and explaining relevant acts, excited utterances accompanying the act, testimony in former proceedings, and admissions of a party. These exceptions still exist.
However, after candidly recognizing that many of these exceptions were really legal fictions, the Supreme Court of Canada has adopted a more flexible approach that has been termed as the “principled approach.” Under this new approach, the criteria for admitting hearsay evidence in court requires the dual requirements of “necessity” and “reliability.” Necessity directs the judge to consider the relevance and availability of the evidence, and the reliability is directed at the circumstances in which the statement was made.
The courts may also apply “a threshold reliability” test, whereby circumstantial indicia such as the guarantee of reliability must be present. An example of this would be whether the statement is likely to be fabricated or inaccurate. Guarantees of reliability would include whether the statement was made under oath, in court, its maker had a motive to lie, and his or her cross-examination might have significantly changed had the maker been available for cross-examination.
This “threshold reliability” test is usually applied to statements made by the maker of the statement, not to the reliability of the witness who is repeating the statement. In deciding on its reliability, all of the background surrounding the making of the statement must be considered, including issues like demeanour, the intelligence and aptitude of the maker of the statement, and his or her absence of a motive to lie.
If the judge decides that the burden of the threshold reliably test has been met, the hearsay statement will be admitted. Nonetheless, the judge must still determine how much weight, if any, to give to the statement.