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Hearsay - Basics

. Canada (Attorney General) v. Iris Technologies Inc.

In Canada (Attorney General) v. Iris Technologies Inc. (Fed CA, 2021) the Federal Court of Appeal considered several hearsay exceptions, particularly that of Ares v Venner:
[25] The first is the exception established by Ares v. Venner, [1970] S.C.R. 608, 1970 CanLII 5 (SCC). This exception is engaged where three criteria are met; the creator of the record had personal knowledge of the information in the records, the records were made contemporaneously with the act, and the creator had a duty to record the information. For the reasons given by the Prothonotary, the affidavit does not meet the Ares v. Venner criteria.

[26] The second route, and the route followed by the Minister in this case, is subsection 244(9) of the ITA. This is a narrower provision which contains a restriction – for a document to be admissible under this exception the CRA officer must have charge of the appropriate records:
"Proof of documents "

"(9) An affidavit of an officer of the Canada Revenue Agency, sworn before a commissioner or other person authorized to take affidavits, setting out that the officer has charge of the appropriate records and that a document annexed to the affidavit is a document or true copy of a document, or a print-out of an electronic document, made by or on behalf of the Minister or a person exercising a power of the Minister or by or on behalf of a taxpayer, is evidence of the nature and contents of the document."

"Preuve de documents"

"(9) L’affidavit d’un fonctionnaire de l’Agence du revenu du Canada — souscrit en présence d’un commissaire ou d’une autre personne autorisée à le recevoir — indiquant qu’il a la charge des registres pertinents et qu’un document qui y est annexé est un document, la copie conforme d’un document ou l’imprimé d’un document électronique, fait par ou pour le ministre ou une autre personne exerçant les pouvoirs de celui-ci, ou par ou pour un contribuable, fait preuve de la nature et du contenu du document."
[27] The Federal Court judge interpreted subsection 244(9) as requiring the affiant to have charge of the records. The judge found that the affidavit contained no express statement to that effect nor did it implicitly establish that requirement (Reasons at para. 25). Based on the affidavit, the judge found it would be difficult to conclude that the affiant had charge of the relevant records. I agree with this analysis. The affidavit does not meet the requirements of subsection 244(9).

[28] The third path to admissibility of the notice of determination is under the business records provisions of the Canada Evidence Act, R.S.C., 1985, c. C-5 (s. 30(6)). Documents tendered under this section are admissible without an affidavit. Yet here again, the pre-conditions to admissibility were not met. The appellant did not provide the required seven days’ notice of intention to admit documents under subsection 30(7) of the Canada Evidence Act.

[29] The fourth path to admissibility is the common law exception to the hearsay rule. The general exclusionary rule may be overcome if the evidence can be shown to be reliable and necessary. The reliability criteria is satisfied only if the contents of the document sought to be admitted into evidence are trustworthy by reason of the way the document came into existence and the circumstances allow the judge to assess its reliability (R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787 at paras. 2-3).
. R v Young

In R v Young (Ont CA, 2021) the Court of Appeal summarized the rule against hearsay evidence and it's exceptions:
[22] All relevant evidence is admissible, subject to certain exceptions, one of which is the rule against hearsay evidence. An out-of-court statement of a declarant is hearsay if (1) the statement is adduced to prove the truth of its contents and (2) there is no contemporaneous opportunity to cross-examine the declarant. Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at paras. 34-35, 42, and 56.

[23] The Supreme Court summarized the framework governing the admissibility of hearsay evidence in Khelawon, at para. 42 and R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358, at para. 15:
(a) Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions to the hearsay rule remain presumptively in place.

(b) A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by the principled approach. The exception can be modified as necessary to bring it into compliance.

(c) In “rare cases”, evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case.

(d) If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity are established on a voir dire.
. Connor Homes v. Director

In Connor Homes v. Director (Div Ct, 2021) the Divisional Court commented on hearsay evidence in administrative proceedings as follows:
[46] The LAT has broad discretion under s. 15 of the Statutory Powers Procedure Act (“SPPA”) to admit evidence that is “relevant to the subject-matter of the proceeding” regardless of whether it would be admissible as evidence in a court, including hearsay evidence. The reliability of hearsay evidence is normally a question of weight.[22] S. 15(1) provides:
15. (1) Subject to subsections (2) and (3), a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court,

(a) any oral testimony; and

(b) any document or other thing, relevant to the subject-matter of the proceeding and may act on such evidence, but the tribunal may exclude anything unduly repetitious.
. R. v. Camara

In R. v. Camara (Ont CA, 2021) the Court of Appeal (Watt JA) comments on hearsay evidence:
[54] Evidence of words spoken out of court by persons who are not called as witnesses may be adduced for either or both of two purposes; to establish that the words were spoken, or to establish that the words spoken were true. The application of the hearsay rule is not defined by the inherent nature of the evidence, but by the use the proponent seeks to make of it: R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 162; R. v. Maglior, 2003 NSCA 74, 178 C.C.C. (3d) 310, at para. 23.

[55] Narrative evidence is necessary to understand the unfolding of events surrounding the alleged offence. Because it is not tendered or received as evidence of the truth of what was said, it does not fall foul, rather beyond, the reach of the hearsay rule: Maglior, at para. 23. Likewise, evidence of threats: T. (J.A.), at para. 95; Subramaniam v. Public Prosecutor, [1956] 1 W.L.R. 965 (P.C.), at p. 970.
. R v M.C.

In this useful case of R v M.C. (Ont CA, 2014) the Court of Appeal took the oppourtunity to set out basic principles of the hearsay rule:
The Hearsay Rule

[50] Like admissibility, hearsay is not an inherent characteristic of an item of evidence: R. v. Baldree, 2013 SCC 35 (CanLII), 2013 SCC 35, [2013] 2 S.C.R. 520, at paras. 30 and 36. The defining features of hearsay are two-fold:
i. the statement is adduced to prove the truth of what was said; and

ii. the absence of a contemporaneous opportunity to cross-examine the declarant.
Baldree, at para. 30; and R. v. Khelawon, 2006 SCC 57 (CanLII), 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 56. The touchstone for the admissibility of evidence that is said to be hearsay is the purpose for which the evidence is adduced. Evidence is hearsay – and presumptively inadmissible – if it is offered to prove the truth of its contents: Baldree, at para. 36; and Khelawon, at para. 36.

[51] The typical hearsay situation involves:
• a declarant (who does not testify);

• a recipient (who does testify);

• a statement (that is offered in evidence); and

• a purpose (proof of the truth of the contents of the statement).
[52] The hearsay rule applies equally to out-of-court statements made by a witness who does testify in the proceedings when they are offered as proof of the truth of their contents: Khelawon, at para. 37; R. v. B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740, at pp. 763-764; and R. v. Starr, 2000 SCC 40 (CanLII), 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 158. The hearsay issue emerges in these cases when the witness does not repeat or adopt the information contained in the out-of-court statement and the proponent tenders the statement for the truth of its contents: Khelawon, at para. 38.

[53] The exclusionary effect of the hearsay rule is not absolute. Hearsay evidence may be admitted under the traditional exceptions, which remain presumptively valid but subject to challenge on the basis of lack of necessity or reliability: Khelawon, at para. 42; R. v. Mapara, 2005 SCC 23 (CanLII), 2005 SCC 23, [2005] 1 S.C.R. 358, at para. 15. Hearsay evidence may also be admitted if the proponent establishes the indicia of necessity and reliability under the principled exception: Khelawon, at para. 42; and Mapara, at para. 15.

[54] When the hearsay rule is summoned as a basis upon which evidence should be excluded, the first inquiry should be whether the proposed evidence is hearsay: Khelawon, at para. 56. The central focus of this inquiry should be on the purpose for which the statement is being adduced. It is only where that purpose is to prove the truth of the contents of the statement that the hearsay rule is engaged and refuge must be sought under a traditional or principled exception for the evidence to be admitted.

[55] A traditional hearsay exception permits the introduction of evidence of spontaneous statements about a declarant’s current physical condition, mental state or sensory impression, as well as excited utterances. Necessity is based on expediency since no other equally satisfactory source for the evidence exists either from the declarant or elsewhere. Reliability is rooted in the spontaneous origin of the statement before there is time for concoction.

[56] Under the principled exception, the necessity requirement may be met where the declarant is unable (or unwilling) to provide a full and frank account of the relevant events, including the ability to recall significant details. The reliability requirement may be satisfied by:
i. compliance with the indicia of B. (K.G.);

ii. the presence of adequate substitutes for testing truth and accuracy (procedural reliability); or

iii. sufficient circumstantial guarantees of reliability or an inherent trustworthiness (substantive reliability).
See, R. v. Youvarajah, 2013 SCC 41 (CanLII), 2013 SCC 41, at para. 30.

[57] Where the hearsay rule is engaged, the prior statement is presumptively inadmissible. Whether the exception invoked to justify admission of the hearsay is traditional or principled, the conditions precedent or indicia are established on a voir dire: Mapara, at para. 15.
. R v Bridgman

In R v Bridgman (Ont CA, 2017) the Court of Appeal sets out principle features of the hearsay rule:
[39] The defining feature of hearsay evidence is that it constitutes an out-of-court statement by a non-testifying declarant that is tendered to prove the truth of its contents: R. v. Bradshaw, 2017 SCC 35 (CanLII), 349 C.C.C. (3d) 429, at para. 1; R. v. Khelawon, 2006 SCC 57 (CanLII), [2006] 2 S.C.R. 787, at para. 56; and Baldree, at para. 30. The unknown people sending the text messages are the out-of-court declarants in this case.

[40] Hearsay is presumptively inadmissible because of the accepted dangers arising from this type of evidence. Declarants may have misperceived or wrongly remembered facts, been unintentionally misleading in the account given, or knowingly made a false statement. Eliciting statements in the absence of declarants deprives the trier of fact of the opportunity to observe their demeanour and see the potential concerns over reliability fully explored: Baldree, at paras. 31-32; Khelawon, at paras. 2, 35; and Bradshaw, at paras. 20, 26.

[41] The presumptive rule against the admission of hearsay evidence applies equally to express and implied assertions tendered for the truth of the assertion. The truth of an implied assertion “hinges on the truth of the declarant’s underlying belief”: Baldree, at para. 39. Both implied and express assertions elicited to prove the truth of “what the person not called as a witness is alleged to have asserted” trigger the application of the hearsay rule: Baldree, at para. 4.
. R v Louangrath

In R v Louangrath (Ont CA, 2016) the Court of Appeal discussed the basic hearsay rule:
[20] As an out-of-court statement that was tendered for the truth of its contents, McCarthy’s statement was hearsay evidence.

[21] The admission of hearsay evidence is governed by the following framework set out by McLachlin C.J.C. in R. v. Mapara, 2005 SCC 23 (CanLII), [2005] 1 S.C.R. 358, at para. 15, and reaffirmed in R. v. Khelawon, 2006 SCC 57 (CanLII), [2006] 2 S.C.R. 787, at para. 42, and R. v. Baldree, 2013 SCC 35 (CanLII), [2013] 2 S.C.R. 520, at para. 34:
(a) Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions to the hearsay rule remain presumptively in place.

(b) A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by the principled approach. The exception can be modified as necessary to bring it into compliance.

(c) In “rare cases”, evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case.

(d) If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity are established on a voir dire.



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