The Admission of Double Hearsay

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

About the Author:

Recent Posts