Is Demeanour evidence Hearsay?
See my earlier blog entry Hearsay
in a Nutshell for a general elaboration as to the nature of hearsay. In this blog entry I will discuss the
relationship between demeanour evidence and hearsay.
Although hearsay typically consists of spoken words,
it can consist of conduct. Such conduct can be of two types:
assertive and non-assertive.
R. v. Badgerow, 2014 ONCA 272, 119 O.R. (3d) 399 at para 106,
leave to appeal
refused
Assertive conductAssertive conduct refers to non-verbal conduct that is intended as an assertion. Examples of assertive conduct include nodding the head (indicating “yes”) and pointing to someone or something. Assertive conduct is conduct that is tendered in evidence to prove the truth of an assertion
Badgerow, at para. 107
Non-assertive
conduct
Non-assertive
conduct describes conduct, whether by words or deeds or both, from which the
trier is asked to infer a statement based on the “declarant’s” belief.
Badgerow, at para. 109
Demeanour
evidence is not assertive conduct, but is it hearsay by non-assertive conduct?
Demeanour
evidence is not assertive conduct. A person’s facial expression (or non-expression)
is not non-verbal conduct like a nod of the head or pointing at something.
R. v. H.B., 2016 ONCA 953, at para 82
Demeanour
evidence is not necessarily hearsay by non-assertive conduct
As
for demeanor evidence being hearsay by non-assertive conduct: simply because
the Crown or the defence asks the jury to draw an inference from the demeanour
evidence does not render that evidence an
implied statement of belief adduced for the truth of its contents.
R. v. H.B., at para 83
In R. v. H.B., the
Court of Appeal for Ontario held that the demeanour evidence of the complainant’s
mother (the observable emotional state of the complainant’s
mother upon being told of the allegations her daughter had made against the
accused) was
not hearsay; rather, it was circumstantial evidence from which the jury could
draw a range of inferences.
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