The Admission of Double Hearsay
When an
out-of-court statement offered as evidence contains another out-of-court
statement, both layers of hearsay must be found separately admissible.
[E]ach
level of double hearsay must fall within an exception, or be admissible under
the principled approach.
R. v. Starr, [2000] 2 S.C.R. 144 at para 172
So,
for example, where A describes to B what A witnessed during fight (one level of
hearsay), and B makes a statement to police about what A has told him (another
level of hearsay), the party seeking to have B’s hearsay police statement
admitted as evidence for the truth of its contents would have to
a. prove that B’s out-of-court statement
represents that version of events which was recounted to him by A, and then
b. prove that the version of events described
by A to B was what actually happened.
See R. v. Cesar, 2016 ONCA 890
Hearsay
evidence “is defined not by the nature of the evidence per se, but by
the use to which the evidence is sought to be put: namely, to prove that what
is asserted is true.”
R. v.
Starr, [2000] 2 S.C.R. 144, at para. 162.
If the
party seeking admission of B’s hearsay police statement wishes to use the
statement, not for truth of its contents, but rather to impeach A’s testimony
at trial, where that testimony is inconsistent with the statement he made to B,
the procedure under s. 11 of the Canada
Evidence Act governs.
Hearsay and Civil Motions
In the
civil context, simple hearsay is admissible on a motion under Rule 39.01(4) of
the Rules of Civil Procedure. Double
hearsay, however, is not admissible on a motion: see Airst v. Airst, 1999 CarswellOnt 362 (C.A.), at para. 6.
Ontario v. Rothmans et al., 2011 ONSC 5356
(CanLII) at para 37
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