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 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 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.