Generally speaking, a hearsay statement is an out-of-court statement made by person A to person B (or overheard by person B), which is being tendered in court as evidence of the proof of the statement’s content(s). By necessity, therefore, person A is unavailable, or unwilling to testify to the truth of that statement in court. Thus, the rule against hearsay prohibits the admission of out-of-court statements which are tendered for their truth. For example, a witness says “Harry told me Brian was driving to Toronto”. Since the witness did not see Brian driving himself, the statement would be hearsay evidence to the fact that Brian was driving, and not admissible. However, in certain circumstances, a hearsay statement may be tendered in court as evidence of the fact that it was made, or even as to the declarant’s state-of-mind. For example, a witness testifies that “Carrie said in front of me that she was waiting for a ride from Bob”. While the statement may not be tendered into evidence as proof that Bob drove Carrie on the occasion in question, it may be adduced as proof of Carrie’s intention to locate a ride from someone, for example. The specific circumstances of how a hearsay statement may be adduced for something other than its truth will depend on the context of the case.

The arguments against the adduction of hearsay statements for proof of their truth are many-fold. First, and foremost, is the lack of opportunity for contemporaneous cross-examination. If the statement is being tendered into evidence as proof of its truth then surely the person who disputes its validity should have an opportunity to depose or “question” the person on his knowledge of the statement. This is not possible when a statement is tendered into evidence by a person other than its maker. Secondly, the trier of fact, whether it is a judge or jury, cannot observe the declarant’s reaction on cross-examination. This is an important point because the credibility of the witness is often said to be at its most revealing during cross-examination. Thirdly, the person repeating the hearsay statement in court may have been mistaken or confused as to what they have heard. Statements made in one context may be markedly different in meaning if made in another.

This does not mean, however, that all hearsay statements adduced into evidence for their truth are de facto inadmissible. There are certain enumerated exceptions to the rule against hearsay which have developed over the years by way of the common law – otherwise known as “judge made law” – or are provided for by way of statute. Some of the most notable are confessions, business records made in the ordinary course of business, excited utterances, dying declarations, declarations against interest and present sense impression. The most obvious unifying feature of these exceptions is that they are made in circumstances which significantly minimize concerns as to their reliability. Take for instance the exception of a dying declaration. The most famous example of this exception unfolded in an old British case where a woman who had her throat slit ran outside of her house screaming “Look what Patrick did to me” – Patrick being her husband. Any witnesses who may have heard the woman would be barred from repeating that statement in court as proof that Patrick slit her throat. However, under this exception, and many of the others which are predicated on similar reasoning, the courts consider that such a statement was made in circumstances that provide it with a significant degree of reliability and lessen the potential for concoction or misunderstanding.

More recently, the Supreme Court of Canada developed yet another avenue to adduce hearsay statements into evidence as proof of their contents. The “principled approach” is to said to assess the factors of necessity and reliability. Thus, hearsay evidence that did not fit into one of the categorical exceptions could now be admitted if the evidence was shown to be both necessary and reliable. This is a contextual analysis which the trial judge will be charged with determining, and will vary depending on the facts of each case.