Chapter 6

Rules of Evidence, 2nd Edition
Chapter 6
Traditional Exceptions to the Hearsay Rule
Copyright © 2016 Emond Montgomery Publications. All rights reserved.

2
Hearsay Exceptions
• Remember that the hearsay rule has been

relaxed in many proceedings by statute. (for
example, administrative tribunals and small
claims court.
3
Hearsay Exceptions
• John Wigmore found that you can distill the

traditional exceptions into 2 principles: reliability
and necessity. He urged courts to use these 2
principles instead of the pigeon-hole approach of
the traditional exceptions.
• R. v. Khan and R. v. Smith 1990 SCC – residual
exception to hearsay – reliability and necessity
but we keep the traditional exceptions.
4
Admissions of a Party
• Professor Younger: “Anything the other side

ever said or did will be admissible so long
as it has something to do with the case.”
• Admission of a party: Anything said by a
party by way of word or conduct that the
other party wishes to introduce against that
party
Copyright © 2016 Emond Montgomery Publications. All rights reserved. Modified
5
Sopinka J in R v Evans:
The rationale for admitting admissions has a different basis than
other exceptions to the hearsay rule. Indeed, it is open to dispute
whether the evidence is hearsay at all. The practical effect of this
doctrinal distinction is that in lieu of seeking independent
circumstantial guarantees of trustworthiness, it is sufficient that
the evidence is tendered against a party. Its admissibility rests on
the theory of the adversary system that what a party has
previously stated can be admitted against the party in whose
mouth it does not lie to complain of the unreliability of his or her
own statements.
.
6
Admissions of a Party
• Formal admission: Party to the proceeding admits
that certain facts are true, thereby relieving the
opposing side from proving those facts at trial
• Once a formal admission is made, party is bound by
this admission and usually may not withdraw it
• Informal admissions are often not part of the trial

process but arise from relations between the parties
• Any statement made by a party that the other party
wishes to use against the other
7
Different Forms of Admission

• Vicarious admission: An admission made by an authorized
speaker for a party
• The content of what the agent, employee, or representative says does
not have to be authorized
• Includes written correspondences internally within a company
1. There must be proof that the speaker was an agent or

employee of the party at the time the statement was made
2. The speaker must have been authorized to speak on the

topic in issue
3. The statement must have been made to a third party

8
Different Forms of Admission, cont’d

• Admission by action: Meaning or intention
conveyed by an act or gesture
• Also referred as post-offence actions

9
• Admissions by silence: Failure to make a denial

may be admitted into evidence as an implied
admission, if the silence manifestly implies an
admission

10
• Conspiracies and admissions by co-defendants:

An admission is generally used in evidence only
against the party who made it
• Co-conspirator exception: rule allowing evidence
against one member of a conspiracy as evidence
against all other members

11
Different Forms of Admission

• Vicarious admission: An admission made by an authorized
speaker for a party
• The content of what the agent, employee, or representative says does
not have to be authorized
• Includes written correspondences internally within a company
1. There must be proof that the speaker was an agent or

employee of the party at the time the statement was made
2. The speaker must have been authorized to speak on the

topic in issue
3. The statement must have been made to a third party

12
Declarations Against Interest

• Declaration against interest: A statement made by
a party that is against the party’s own interest
• Two categories of “against interest” that have

traditionally led to admissibility:
1. Declarations against pecuniary or proprietary interest
2. Declarations against penal interest

13
Example from textbook at p. 90
Jennifer is a passenger in Dharma’s car when it is

cut off by another car and ends up in a ditch.
Jennifer is heard to state, “What was that other
driver thinking? It’s not your fault there are idiots
like that on the road.” When Jennifer sures
Dharma alleging negligence driving, Dharma’s
counsel seeks to introduce that statement…..

14
Test for Declaration Against Pecuniary or

Proprietary Interest
1. The person making the statement must be unavailable to

testify.
2. The statement must be against the person’s interest.
3. The person making the statement must have had personal

knowledge of the facts (that is, no “double hearsay”).
4. The economic prejudice to the person making the

statement must have been immediate.
5. The person making the statement must have known about

the prejudice.
15
Test for Declarations Against Penal Interest
1. The person making the statement must be dead,

insane, out of the jurisdiction, or too ill to testify.
2. The person making the statement must believe

that he or she is vulnerable to criminal
prosecution as a result of making the statement.
3. The vulnerability to criminal prosecution cannot

be remote (that is, a vague possibility).

16
Test for Declarations Against Penal Interest

(cont’d)
4. Is there any other evidence supporting the

statement against penal interest and is there a
connection between the person making the
statement and the accused person?
5. The court will look at the totality of the

circumstances surrounding the making of the
statement to determine its admissibility.

17
Test for Dying Declarations

• Dying declaration: A statement made by a person who is certain they are
about to die
1. The maker of the statement must be deceased.
2. At the time of making the statement, the person making it must have
known that he or she was going to die almost immediately.
3. The statement must be one that would have been admissible if the
person who made it had lived.
4. The statement is about who or what caused the maker of the

statement to die.
5. The criminal case in which the either the Crown or the defence is
seeking to admit the statement is one in which the charge relates to
the death of the statement-maker.
18
R v Woodcock (1789), 168 ER 352 (KB) at

353, Chief Baron Eyre.
Now the general principle on which this species of evidence
is admitted is, that they are declarations made in extremity,
when the party is at the point of death, and when every
hope of this world is gone: when every motive to falsehood
is silenced, and the mind is induced by the most powerful
considerations to speak the truth; a situation so solemn,
and so awful, is considered by the law as creating an
obligation equal to that which is imposed by a positive oath
administered in a Court of Justice.
19
Res Gestae or Spontaneous Statements
• Res gestae or spontaneous statement: A

statement made in an excited state or expressing
an existing physical, mental, or emotional state
• The concern about concoction or lying is minimized
when an event takes place and a person comments on
the event without having an opportunity to fabricate a
story

20
Res Gestae or Spontaneous Statements (cont’d)
• Excited utterance: A statement made while the

speaker’s mind is still dominated by a startling
event
• Present impression: A statement regarding a

person’s perception of their immediate physical
surroundings or actions
• A narrative statement in real time, describing events as
they unfold
21
•D.S. faces charges of attempted murder and aggravated assault as a result of

stabbing injuries sustained by M.T. on September 23, 2017.
•C.H.’s …and her friend J.R. were on her porch for a visit when they saw two
men running down the ramp from the park area, towards them, one in front of
the other. …. When the man in front stopped and rested against a car that was
in the driveway across the street from her residence, she saw that the man
behind him had caught up and was getting ready to lunge at the first man with a
large 12-inch knife in his hand. When she saw the man with the knife lunge at
the other man, she yelled “No!” After she yelled, the man with the knife ran back
up towards the park, and the other man kept running …, and yelled at her to
call 911. He then came up to her porch and she realized he was bleeding a lot,
so she called 911. ….. She asked him, “who did this to you?” and he
responded, “M.J.’s boyfriend”.
•M.T.is alive but unavailable to testify. Is the statement “M.J.’s boyfriend”

hearsay? Is it admissible?
22
R. v. D.S., 2021 ONSC 2825

[18]…..the excited utterance exception will permit evidence that is otherwise
inadmissible hearsay to be admitted if the Crown can show the following, on the
balance of probabilities:
a) there is a startling occasion;
b) there is an utterance or statement made before there is time to
fabricate;
c) the utterance must relate to the startling occasion; and
d) the declarant must personally observe the matter of which they
speak.
[19] The statement need not be strictly contemporaneous to the occurrence.
It may be only reasonably contemporaneous with the occurrence, so long as
the stress or pressure created by it is ongoing and the statement is made
before there is time to contrive or misrepresent:

23
•[29] I am satisfied that the utterance that M.T. made to C.H. qualifies as an
excited utterance, which is a well-recognized exception to the hearsay rule.
•[30] There is no doubt that a startling event occurred – M.T. was stabbed in
the ear and neck. He had just stopped running from the assailant when he
came to C.H.’s porch. He was still bleeding. He was in immediate need of
medical attention. All attention was focused on his injury and helping him until
the ambulance arrived.
• …..
•[34] Clearly, the utterance made by M.T. related to the event of his
stabbing, which he personally observed and was a part of.
•[35] The circumstances of this statement show that it was spontaneous,
when he was still in the throes of the assault. When he was asked by C.H., he
answered immediately. C.H. saw him run up and did not see anyone else speak
to him until which time he collapsed on her porch. No one else was there
except C.H. and her friends. When he later calmed down and spoke to the
police, he then had the presence of mind to not say anything. The “startling”
event was over.

24
Business Records
• Business record: A record made in the ordinary course of
business by an individual performing the duties of employment
who has no motive to fabricate
• Common law test (Ares v. Venner):
1. The records were made in the ordinary course of the business,

2. They were made by a person whose duty was to keep such records
3. The person who made the records did so from personal knowledge
4. The records were made contemporaneously (at the time of the event)
5. The person making the records had no motive to misrepresent them

25
Business Records, cont’d

• Statutory provisions do not replace the common-law rule
but work as an adjunct to it
• See s. 35 of Ontario Evidence Act and s. 30 of the Canada
Evidence Act
• Some statutes contain provisions making electronic

documents admissible as records
• Authentication must be provided by a witness who can give oral
evidence to answer these questions
• Must satisfy the court that the record is the best evidence
available
26
• VFC Inc v Balchand [2008] Div Ct held that the

notice under the Evidence Act was NOT a
prerequisite to the admission of business record
hearsay documents in the Small Claims Court.
27
Prior Testimony
• When a party is unable to be a witness at trial due to illness,
disappearance, mental incapacitation or has died, prior
testimony from preliminary hearing or the examination for
discovery could be used.
• The common-law rule: Oral evidence taken at another

proceeding may be admitted at trial for the truth of its contents if:
1. The witness is unavailable for the trial,
2. The material issues and the parties are substantially the same in
both proceedings, and
3. The opposite party had the opportunity to cross-examine in the
earlier proceeding.
28
Prior Testimony, cont’d

• The procedural rules of most provincial superior courts
provide for the admission of testimony from prior
proceedings
• The Ontario Rules of Civil Procedure allow only for the admission of
prior testimony taken during examinations for discovery, not
evidence in any other proceeding
• Under the Criminal Code, the necessity criteria are clearly

defined as being dead, insane, too ill to testify, or absent
from Canada
• The judge has the discretion to determine whether the latter three
make the accused unable to testify
29
Rule 31.11(6) Unavailability of Deponent
(6) Where a person examined for discovery,

(a) has died;
(b) is unable to testify because of infirmity or illness;
(c) for any other sufficient reason cannot be compelled to attend at the trial; or
(d) refuses to take an oath or make an affirmation or to answer any proper question,
any party may, with leave of the trial judge, read into evidence all or
part of the evidence given on the examination for discovery as the
evidence of the person examined, to the extent that it would be
admissible if the person were testifying in court.
30
Prior Statements made by Witnesses
• R. v. Khelawon: Prior, out-of-court statements,

whether video-taped or not, and whether or not
the witness was present in court to give evidence,
are hearsay and cannot be admitted for the truth
of their contents unless they fit within an
exception to the hearsay rule (or principled
exception)

31
Prior Inconsistent Statements
• Not hearsay if using to attack the witness’

credibility
• Are you lying now or were you lying then
• You can’t keep your facts correct
• You are unreliable
.
32
• In court statement: “I had only had one glass of

wine on the evening of the accident. We left the
party before it started snowing and I never
exceeded the speed limit.”
• “Do you recall phoning the host of the party Yuki
immediately after the party and saying “You were
right Yuki I should have called a cab after drinking
a bottle of wine. It was so snowy when I was
driving and I was rushing to get home. I can’t
believe I just totalled my car.”
33
R. v. B.(K.G.) 1993 SCC
• Court allowed for admissibility of prior

inconsistent statements for their truth without
witness adopting the statement if:
• Statement made under oath or solemn affirmation following
warning
• Statement is videotaped
• Opposing party has an opportunity to cross-examine the witness

on the statement
34
Identifications
• Typically occur shortly after a crime
• For example, police photo line-up
• Witness should not be influenced by the police officer or the process

in any way
• If the witness can positively identify the accused in court, the out-of-
court identification can be considered by the trier of fact in
determining whether identification has been proven beyond a
reasonable doubt.
• What happens if witness cannot identify the accused in court

because too much time has passed.
Copyright © 2016 Emond Montgomery Publications. All rights reserved. Modified

35
Past Recollection Recorded

The conditions for the past recollection
recorded exception were set out in R. v.
Richardson (2004), 2003 CanLII 3896 (ON CA)
1. Reliable record: The past recollection must have been
recorded in a reliable way. This requirement can be broken down
into two separate considerations: First, it requires the witness to
have prepared the record personally, or to have reviewed it for
accuracy if someone else prepared it. Second, the original record
must be used if it is available.
2. Timeliness: The record must have been made or reviewed

within a reasonable time, while the event was sufficiently fresh in
the witness's mind to be vivid and likely accurate.
36
Past Recollection Recorded

3. Absence of memory: At the time the witness
testifies, he or she must have no memory of the
recorded events.
4. Present voucher as to accuracy: The witness,

although having no memory of the recorded events,
must vouch for the accuracy of the assertions in the
record; in other words, the witness must be able to say
that he or she was being truthful at the time the
assertions were recorded.
37
Problem
• Abraham Sinha is a plaintiff in a motor vehicle accident. He
would like to call an eyewitness to the accident to testify that
the car that struck Abraham left the scene of the accident. The
eyewitness, Sally Samson, observed the accident and made note
of the license plate of the truck. She did not have anything to
record the license plate number on so she asked her boyfriend,
Daniel Emerson, to write it down on his school agenda. At trial,
Sally is unable to recall the license plate number. She can testify
that she saw the accident, it was a truck that struck the plaintiff
and minutes after observing the license plate number she asked
her boyfriend to write down the number. The boyfriend’s school
agenda is available at the trial. Can you get the agenda is as
evidence?
38
Present Memory Revived

• Distinct from past recollection recorded which is hearsay
• Present memory revived is a method of “jogging” the

witness’ memory. They use the note or document to aid
their memory.
• Oral testimony is the evidence not the document or thing.
• Past recollection recorded the document is the evidence

because witness has no independent memory.
39
Oral Histories of Aboriginal Peoples

• In Delgamuukw, the Supreme Court validated oral history and stated
that there is no distinction between oral history and documentary
history
• Assessment for reliability is still necessary
• In R v. Van der Peet, the Supreme Court established the necessary

proof of aboriginal right:
• There must be a modern practice, tradition, or custom (that is, salmon
fishing for trade);
• Continuity from pre-contact times to the present;
• The practice, tradition, or custom must have been integral to the

people’s culture; and
• The people must have had a distinctive society.
40
In R v Van der Peet, Chief Justice Lamer held that courts

should approach evidentiary rules:
with a consciousness of the special nature of aboriginal claims, and
of the evidentiary difficulties in proving a right which originates in
times where there were no written records of the practices, customs
and traditions engaged in. The courts must not undervalue the
evidence presented by aboriginal claimants simply because that
evidence does not conform precisely with the evidentiary standards
that would be applied in, for example, a private law torts case
41
Remember the basic principles
“Underlying the diverse rules on the admissibility of evidence are three

simple ideas. First, the evidence must be useful in the sense of
tending to prove a fact relevant to the issues in the case. Second, the
evidence must be reasonably reliable; unreliable evidence may hinder
the search for the truth more than help it. Third, even useful and
reasonably reliable evidence may be excluded in the discretion of the
trial judge if its probative value is overshadowed by its potential for
prejudice.” CJ McLachlin Mitchell v. M.N.R., 2001 SCC 33 at para. 30

42
Steps to Admissibility of Oral History
•First oral history must be relevant - it tends to prove a fact relevant to the
issues in the case. For example, it offers evidence of ancestral practices
•Second, oral history evidence is hearsay and should not be treated differently
than other kinds of hearsay evidence, except for the need to bear in mind “the
promise of reconciliation embodied in s. 35(1)”: William v. British Columbia,
2004 BCSC 148 at para. 16 and others.
•Oral history evidence must be necessary and reliable.

43
•Justice Vickers in found the following factors were relevant to

assessing threshold reliability :
• 1) some personal information concerning the
witnesses’ circumstances and ability to recount what others
have told him or her;
• 2) who it was that told the witness about the event or
story;
• 3) the relationship of the witness to the person from
whom he or she learned of the event or story;
• 4) the general reputation of the person from whom the
witness learned of the event or story;
• 5) whether that person witnessed the event or was
simply told of it; and,
• 6) any other matters that might bear on the question
of whether the evidence tendered can be relied upon by
the trier of fact to make critical findings of fact.
44
Finally, trial judge has discretion to exclude

evidence if prejudicial effect outweighs probative
value.

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Rules of Evidence, 2nd Edition

Copyright © 2016 Emond Montgomery Publications. All rights reserved.

• Remember that the hearsay rule has been

• John Wigmore found that you can distill the

• Professor Younger: “Anything the other side

• Informal admissions are often not part of the trial

Different Forms of Admission

1. There must be proof that the speaker was an agent or

2. The speaker must have been authorized to speak on the

3. The statement must have been made to a third party

Different Forms of Admission, cont’d

Copyright © 2016 Emond Montgomery Publications. All rights reserved.

Different Forms of Admission, cont’d

• Admissions by silence: Failure to make a denial

Copyright © 2016 Emond Montgomery Publications. All rights reserved.

Different Forms of Admission, cont’d

• Conspiracies and admissions by co-defendants:

Copyright © 2016 Emond Montgomery Publications. All rights reserved.

Different Forms of Admission

1. There must be proof that the speaker was an agent or

2. The speaker must have been authorized to speak on the

3. The statement must have been made to a third party

Declarations Against Interest

• Two categories of “against interest” that have

2. Declarations against penal interest

Copyright © 2016 Emond Montgomery Publications. All rights reserved.

Example from textbook at p. 90

Jennifer is a passenger in Dharma’s car when it is

Copyright © 2016 Emond Montgomery Publications. All rights reserved.

Test for Declaration Against Pecuniary or

1. The person making the statement must be unavailable to

2. The statement must be against the person’s interest.

3. The person making the statement must have had personal

4. The economic prejudice to the person making the

5. The person making the statement must have known about

Test for Declarations Against Penal Interest

1. The person making the statement must be dead,

2. The person making the statement must believe

3. The vulnerability to criminal prosecution cannot

Copyright © 2016 Emond Montgomery Publications. All rights reserved.

Test for Declarations Against Penal Interest

4. Is there any other evidence supporting the

5. The court will look at the totality of the

Copyright © 2016 Emond Montgomery Publications. All rights reserved.

Test for Dying Declarations

1. The maker of the statement must be deceased.

4. The statement is about who or what caused the maker of the

R v Woodcock (1789), 168 ER 352 (KB) at

Res Gestae or Spontaneous Statements

• Res gestae or spontaneous statement: A

Copyright © 2016 Emond Montgomery Publications. All rights reserved.

Res Gestae or Spontaneous Statements (cont’d)

• Excited utterance: A statement made while the

• Present impression: A statement regarding a

•D.S. faces charges of attempted murder and aggravated assault as a result of

•M.T.is alive but unavailable to testify. Is the statement “M.J.’s boyfriend”

R. v. D.S., 2021 ONSC 2825

Copyright © 2016 Emond Montgomery Publications. All rights reserved.

Copyright © 2016 Emond Montgomery Publications. All rights reserved.

• Common law test (Ares v. Venner):

1. The records were made in the ordinary course of the business,

Copyright © 2016 Emond Montgomery Publications. All rights reserved.

Business Records, cont’d

• Some statutes contain provisions making electronic