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Evidence - Hearsay - No Truth Use. Gumbley v. Vasiliou
In Gumbley v. Vasiliou (Ont CA, 2025) the Ontario Court of Appeal dismissed a medical malpactice appeal, here brought against "trial judge’s causation finding that her breaches of the standard of care more likely than not caused Ms. Gumbley’s brain damage".
The court considered a hearsay inadmissibility issue, here where the appellant alleged that the trial judge "improperly relied on the hearsay content and opinions expressed in a critical care note" written by a non-defendant doctor:[27] Hearsay is an out of court statement that is being tendered for the truth of its contents. The canonical expression of the rule against hearsay comes from the Judicial Committee of the Privy Council in Subramaniam v. Public Prosecutor, [1956] 1 W.L.R. 965, at p. 970:Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. This statement has been accepted as reflecting the law in Ontario: see R. v. Rosik, 1970 CanLII 278 (ON CA), [1971] 2 O.R. 47, [1970] O.J. No. 1738 (C.A.), at para. 47, per Schroeder J.A. (concurring), aff’d [1971] S.C.R. vi; R. v. Wildman (1981), 60 C.C.C. (2d) 289, 1981 CanLII 86 (Ont. C.A.), at para. 35, rev’d on other grounds, 1984 CanLII 82 (SCC), [1984] 2 S.C.R. 311; and Ontario Law Reform Commission, Report on the Law of Evidence (Toronto: Ministry of the Attorney General, 1976), at p. 1.
[28] In this case, Dr. Vasiliou argues the assertions in Dr. Warner’s note were taken by the trial judge as true: “Around midnight, [Ms. Gumbley] required intubation because of severe respiratory acidosis and hypoxemia.”
[29] Since Dr. Warner’s note is a statement made out of court and not during trial testimony, his note would be hearsay if relied upon to establish what it asserts. Indeed, it is clear that the assertions contained in the note include a second layer of hearsay. Dr. Warner did not arrive at the hospital until approximately 1:50 a.m.; he had no first-hand knowledge of whether Ms. Gumbley was experiencing “severe respiratory acidosis and hypoxemia” before or around midnight. His note about this observation must have been based not on his own personal knowledge, but on information he got from some other source about Ms. Gumbley’s condition. Even if Dr. Warner had been a witness at trial, the hearsay rule would have barred him from giving evidence about things he was told by other people or learned from reading documents if the purpose of adducing this testimony was to establish the truth of what Dr. Warner was told or what he read, and if no exception to the hearsay rule applied. The note was therefore double hearsay if relied upon to prove that “[a]round midnight, [Ms. Gumbley] required intubation because of severe respiratory acidosis and hypoxemia.”
[30] The historical case law yields several grounds for the presumptive inadmissibility of hearsay statements. Of these, the inability to cross-examine the declarant has the most force. The trier of fact is hobbled in the pursuit of the truth by being unable to assess the declarant’s credibility and reliability in the crucible of cross-examination. Dr. Warner was not a witness, so he was not cross-examined.
[31] However, a statement used for a hearsay purpose may be admissible if the parties agree to its admission as hearsay or if it falls within an exception to the hearsay rule. It is helpful to consider the admission of each level of hearsay in turn. . R. v. Budlakoti
In R. v. Budlakoti (Ont CA, 2025) the Ontario Court of Appeal dismisses a criminal appeal, here when the appellant "sold several firearms to a man he met in jail. Unbeknownst to the appellant, that man had become a police agent for the Ontario Provincial Police (the “OPP”)" - giving rise to a defence argument of entrapment.
Here the court considers the bar on the use of hearsay evidence for it's truth value:[10] Hearsay evidence is presumptively inadmissible for its truth: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 2. Double hearsay, like the “too hot” statement, is no exception. The police agent was reporting what Kenemy told him about what the appellant allegedly said. The statement of the accused was itself admissible as a party admission, a “well-recognized exception to the hearsay rule”: R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, at para. 75. However, the police agent’s testimony about what someone else reported about what the accused said clearly engages the traditional hearsay dangers.
[11] While the statement was presumptively inadmissible for its truth, the trial judge’s reasons must be evaluated against the dynamic of the hearing itself, and the positions taken by the parties. Doing so reveals that the trial judge made no error in relying on the statement.
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