Hearsay evidence is a term that often causes confusion, not only for the general public but also for legal professionals. In Ontario, where personal injury law is particularly nuanced, understanding hearsay is crucial for effectively presenting or defending a case. This guide will break down what hearsay evidence is, its implications in personal injury cases, and how to navigate its complexities to ensure the best possible outcome for your clients.
What is Hearsay Evidence?
Hearsay evidence is any statement made outside of the courtroom that is presented to prove the truth of the matter asserted in the statement. The foundational issue with hearsay is its lack of reliability—since the declarant (the person who made the statement) is not present in court, their credibility cannot be tested through cross-examination (R. v. Khelawon, 2006).
In R. v. Khelawon (2006), the Supreme Court of Canada outlined that hearsay is presumptively inadmissible due to the potential for inaccuracy and deception. In personal injury cases, this can significantly impact the evidence that can be presented, particularly when it comes to statements made by witnesses or documents produced outside of court.
Exceptions to the Hearsay Rule
Despite its general inadmissibility, there are several well-recognized exceptions to the hearsay rule that are particularly relevant in personal injury law. These exceptions allow certain types of hearsay evidence to be admitted, provided they meet specific criteria for reliability and necessity.
- Business Records (Section 35 of the Evidence Act, RSO 1990): This statutory exception allows business records to be admitted as evidence if they were made in the usual and ordinary course of business and within a reasonable time of the event they document. For instance, medical records documenting a patient’s condition immediately after an accident may be admissible under this exception (R. v. Felderhof, 2005).
- Statements Against Interest: If a declarant makes a statement that goes against their own interest (such as admitting fault in an accident), this statement can be admitted as evidence. The rationale is that people are unlikely to make statements that are detrimental to themselves unless they are true (R. v. Baldree, 2013).
- Spontaneous Utterances: A statement made spontaneously by a declarant immediately after an event, without the opportunity for reflection or fabrication, may also be admissible. In personal injury cases, this could include an exclamation made by a witness immediately following an accident (R. v. Mapara, 2005).
- Past Recollection Recorded: This exception applies when a witness’s recollection of an event has faded, but they previously recorded their memory in a document, such as a diary entry or a formal statement (R. v. N.Y., 2012).
The Principled Approach: Necessity and Reliability
In addition to these specific exceptions, hearsay evidence may also be admitted under what is known as the “principled approach.” This approacjbbh requires that the evidence must be both necessary and reliable. The necessity criterion is met when the evidence is critical to the case and there is no other available source of similar evidence. Reliability, on the other hand, is judged by the circumstances under which the statement was made, such as whether it was contemporaneously recorded or supported by other evidence (R. v. Khelawon, 2006).
For example, in R. v. Baldree (2013), the Supreme Court of Canada emphasized that even if hearsay evidence does not fall within a recognized exception, it can still be admitted if it meets these criteria.
Practical Application in Personal Injury Cases
Understanding the rules and exceptions surrounding hearsay is essential for any personal injury lawyer in Ontario. Whether you are attempting to introduce a business record or rely on a spontaneous utterance, it is critical to ensure that the evidence meets the standards of reliability and necessity.
One practical strategy is to thoroughly document the source and context of any hearsay evidence you intend to use. For instance, if relying on a business record, ensure that the record was made in the regular course of business and within a reasonable time of the event. Similarly, if you plan to use a witness statement, consider whether it qualifies under an established exception or meets the criteria for the principled approach.
Conclusion
Hearsay evidence can be a double-edged sword in personal injury cases. While it is often inadmissible due to concerns about reliability, several exceptions and the principled approach provide pathways for its use. By understanding and carefully applying these rules, personal injury lawyers in Ontario can more effectively advocate for their clients and enhance the chances of a favorable outcome in court.
References
1. R. v. Khelawon, [2006] 2 S.C.R. 787.
2. Evidence Act, RSO 1990, c E-23, s 35.
3. R. v. Baldree, [2013] 2 SCR 520.
4. R. v. Felderhof, [2005] O.J. No. 4151.
5. R. v. Mapara, [2005] 1 SCR 358.
6. R. v. N.Y., 2012 ONCA 745.
KANON CLIFFORD
The ability to make a meaningful change in people’s lives is what attracts Kanon to injury law. For Kanon, the clients’ right to fair compensation is the pillar of his deep commitment to improving the lives of injured persons and their families. Kanon started at Bergeron Clifford as a summer student learning the ins and outs of injury law. He then completed his articles at our firm before being called to the Ontario bar in 2020.
