The “state of mind exception” to the hearsay rule

Pursuant to the traditional, fixed, “state of mind exception” to the hearsay rule exception, an out-of-court statement made by a person may be admitted if

  • it discloses their relevant, present existing state of mind, and
  • the statement was made in a natural manner and not under circumstances of suspicion.  FN1.

Evidence satisfying this exception will be prima facie admissible, but only “in order to demonstrate the intentions or state of mind of the declarant at the time the statement was made”. FN2.

Statements admitted pursuant to this exception cannot be used to establish the past acts or events that the statements describe. FN3

The hearsay exception in action

R. v. Griffin provides an example of the hearsay exception in action. In that case, the sole issue at trial was the identity of P’s killer.  P was in hiding in the weeks leading up to his murder and during this time stated to his girlfriend, “If anything happens to me it’s your cousin’s family.”  As P was not available for cross-examination at trial, this statement constituted hearsay if introduced for the proof of its contents.  The statement was tendered and admitted for the truth of the fact that P feared G, a purpose that did not exceed the scope of the traditional “state of mind” exception to the hearsay rule. 

P’s fear of G was a relevant fact because P’s fearful state of mind was probative of the nature of the relationship between him and G in the time period preceding the murder.  Such information could afford evidence of the accused’s animus or intention to act against the victim, making it relevant to motive and, in turn, to the issue of identification. 

A second route to get the hearsay evidence in

Besides the traditional “state of mind exception”, there is a second hearsay exception that can permit the admission of out-of-court statements made by a person as evidence of their state of mind—the principled hearsay exception. FN4 Unlike statements admitted pursuant to the traditional state of mind exception, statements admitted pursuant to the principled exception are not limited to establishing the state of mind of the speaker at the time the statement is made. FN5

 

Stuart O’Connell (criminal defence lawyer, Toronto)

You are welcome to contact Stuart via LinkedIn (14) Stuart O'Connell | LinkedIn

 

FN1: R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 168; R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at para. 59.

FN2: Starr, at para. 168, quoting R. v. Smith, [1992] 2 S.C.R. 915, at p. 925.

FN3: Smith, at p. 927.

FN4: R. v. Skeete, 2017 ONCA 926, 357 C.C.C. (3d) 159, at paras. 73, 92, leave to appeal refused, [2018] S.C.C.A. No. 508; R. v. Moo, 2009 ONCA 645, 247 C.C.C. (3d) 34, at para. 102, leave to appeal refused, [2010] S.C.C.A. No. 152.

FN5: R. v. Dion, 2025 ONCA 7 at para 31.

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