By Patrick Ducharme prepared for the L.S.U.C Continuing Legal Education program “Recent Issues and Developments In Criminal Law” September 6, 1997.
The common thread running through the topics presented here is that each in its own way deals with the problem of separating truth from falsehood or, better, the perception of truth from the perception of falsehood. And although the evidentiary issues relating to these topics are many and sometimes complicated, skillful counsel inevitably demonstrate mastery in understanding and applying them in individual circumstances.
With regard to hearsay evidence, for example, the Supreme Court of Canada has in the last few years developed a new, “principled” approach to the determination of admissibility, an approach which has tended to impose upon counsel the burden not only to recognize hearsay in the first instance, but also to call or to challenge evidence of “necessity” and “reliability” concerning out-of-court statements sought to be admitted for their truth. Given the major role that hearsay statements will continue to play in the outcomes of trials, especially in light of this newly formulated “principled” approach privileging the concepts of necessity and reliability, I prefer to begin my analysis there.
Hearsay evidence is an out-of-court assertion of a person who is not the witness, which is being offered in court as proof of the truth of the fact or facts asserted. Down through the years, courts have held that whether a statement is hearsay depends on the particular purpose for which the proponent offers it. If its proposed use is to establish the truth of what is contained in the statement, then it will be caught by the rule excluding the hearsay use of evidence.
The stable, abiding nature of the rule is somewhat surprising in view of the fact that within the last 25 years alone it has been subjected to extensive review by both the Canada and Ontario Law Reform Commissions as well as by a Federal/Provincial Task Force on Uniform Rules of Evidence.2
Stating the rule, as I have done here, is not difficult. Understanding its application, however, has proven to be quite another matter. The truth is that the rule governing hearsay is perhaps the most misunderstood, and misapplied, rule in all the law of evidence. Some believe that witnesses may never testify as to something told to them by someone else. Others think that a witness may testify as to an utterance made directly
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