When someone prefaces a story he is about to tell you by saying, “This is hearsay, but…,” you know that it may not be totally true. In fact, it may be completely false.
The same is true in law. “Hearsay testimony” and “hearsay evidence,” refer to information provided to a court by witnesses who are passing on information based on what others have told them and is therefore of questionable accuracy. Due to its untrustworthy nature, coupled with the fact that the source of the hearsay evidence cannot be cross-examined, hearsay testimony is generally inadmissible in Canadian courts. However, there have long been exceptions to this general rule, and many kinds of hearsay evidence are oftentimes accepted in Canadian courts. These include business records, sworn previous testimony, and statements that are part of public or government documents.
Reliability and Necessity
In recent years, however, the Supreme Court of Canada has broadened the range in which prosecutors might be able to seek admissibility of hearsay evidence. Starting with its R. v. Kahn ruling in 1990 and in several subsequent determinations, the court has concluded that hearsay evidence can be used in court if it is found to be both reasonably reliable and necessary to the case at hand—even though it’s still hearsay. While the Court ruled that the traditional exceptions would remain, it also concluded that if there is a conflict between them and the new “principled” approach, the new standard would prevail.
Challenging Hearsay Evidence
Even though there is no opportunity to cross-examine the source of the hearsay information, there nevertheless may be openings for defence lawyers to challenge it in other ways. Perhaps an examination of other statements or transcripts related to the source of the hearsay statement might reveal bias or lack of truthfulness. Or maybe the circumstances surrounding the hearsay statement can be challenged. And if the hearsay evidence does make it into court, defence lawyers can still raise questions about it through cross-examination of the person in possession of the second-hand information.
Hearsay evidence can pose a genuine problem for defendants. But experienced defence lawyers can still find ways to reduce or mitigate their impact.
- “Many kinds of hearsay evidence are oftentimes accepted in Canadian courts.”
- “Hearsay evidence can pose a genuine problem for defendants. But experienced defence lawyers can still find ways to reduce or mitigate their impact.”
- “If the hearsay evidence does make it into court, defence lawyers can still raise questions about it through cross-examination.”
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