Hot Law on Hearsay: R v. Baldree 2012 ONCA 138

even for civil litigators.

on CanLII


until it shows up

Judgments from each of Watt JA (dissenting), Feldman JA, and Blair JA, concurring in the result.

From Blair JA’s reasons

[151] For centuries, judges, lawyers and academics have devoted much thought and debate to the questions of what does or does not constitute hearsay evidence and why and in what circumstances, and what are the principles underlying the admissibility of such evidence. The authors of McWilliams’ Canadian Criminal Evidence observe that “[f]or more than two centuries the common law has woven a web of complex rules and exceptions related to the admission of out-of-court assertions”: S. Casey Hill, David M. Tanovich, & Louis P. Strezos, McWilliams’ Canadian Criminal Evidence, looseleaf (Toronto: Canada Law Book, 2011) at p. 7-4. As early as 1684, Jeffreys L.C.J. said that unsworn oral hearsay is “a sort of evidence, but it is not to be allowed” (emphasis added): see Frederick W. J. Koch, “The Hearsay Rule’s True Raison d’Être: Its Implications for the New Principled Approach to Admitting Hearsay Evidence” (2005-2006) 37 Ottawa L. Rev. 249-289, at para. 26, What sort of evidence confronts us here, is at the heart of the appeal.

[152] Indeed, it is likely there are factual situations where, if 100 legal professionals were placed in a room and asked whether the proffered evidence constitutes hearsay, the question would generate 40 firm responses in the affirmative and 40 equally firm responses in the negative, with the remaining 20 falling into the unsure category. ….

[153] I fall into the “unsure” category in this case. There are arguments in favour of the positions advanced by both of my colleagues, each of whom has engaged in a careful and reflective exploratory journey through the tricky shoals of what does or does not constitute “hearsay.” On balance, I favour the conclusions reached by Feldman J.A. and her analysis in arriving at those conclusions in the particular circumstances of this case. But I would add the following observations.

[154] Legal purists, and judges who must cope with and decide these issues, spend a great deal of intellectual energy worrying about whether evidence such as that confronting the trial judge is hearsay. While this approach provides a framework for analysis, I wonder if a different approach might be helpful.

Blair JA sketches that framework at [159]-[160].



  1. And here I thought it was because my Evidence prof was a pure academic that he started the explanation of hearsay by telling us that judges are never able to define, but claim to know it when they see it.

    Somewhat alarming that Watts, the criminal procedure guru,is in the minority here, balanced by the reassuring fact that in the result, the “tie” went in favour of the accused.

    Still, I’m less certain about hearsay than ever. Thank goodness most judges just let everything in and say it goes to weight (only half kidding).