Hearsay 2: Specific
Exceptions
Admissions
Sopinka 6.57
If evidence is hearsay, it is
presumptively inadmissible unless: (a)
it falls within a traditional exception to
the rule; or (b) it is shown to meet the
dual criteria of necessity and reliability
(principled approach).
The onus lies on the proponent of the
evidence to establish these criteria on
a BOP.
Once identified as Hearsay, the proponent
should look for a specific, already
recognized exception to the Hearsay Rule:
Starr (S.C.C.). This is before proceeding to
consideration of the general exception.
Of course, it is open under Starr for the
opponent to challenge the application of
the specific exception in the case at bar, as
not complying with the dual requirements
of (a) necessity and (b) reliability.
However, there is a general
recognition that most/all specific
exceptions to the Hearsay Rule
arising out of the common law were
generated for those dual reasons: ie.
they were examples of where it was
both necessary to receive the
evidence in this form, and where the
evidence, although hearsay, was
nevertheless reliable.
Admissions (of a party litigant)
Rule: where the impugned evidence
allegedly derives from a party
litigant’s own mouth, then even
though the source of the testimonial
value may not be on the stand at the
time, the evidence is nevertheless
admissible under the admissions
exception to the Hearsay Rule.
This is a rule of fairness and expediency. It recognizes that
the traditional Hearsay dangers are not in play. The witness
reporting the alleged admission is a direct witness, having
experienced/witnessed the alleged admission. That witness
is under oath, subject to cross, and assessment of
demeanour by TOF.
The law looks at it this way: the admission of hearsay
evidence is often unfair, by definition, to the opponent, who
lacks a live and direct witness to cross under oath. In the
case of admissions, the law recognizes that the party
litigants are, by definition, all before the Court. They can
cross-examine on alleged admissions, and after all, if they
want to deny that they made such an admission, they may
take the stand and so refute the allegation.
Notes
Where admissible as an admission, the
alleged statements of the party litigant are
admissible POTOC.
They are admissible for and against the
alleged admitting party (ie. every
admission/confession has its good and bad
elements, all are before the TOF to weigh).
The entirety of the admission must go in.
Notes
Admissibility under this or any other
exception for that matter, is a question of
law for the trier of law.
As is usual, the trier of law is not
concerned with a demonstration of proof
that the admission was actually made – the
witness has so asserted. Whether it was
made, and what the admission contained,
what words were used and with what
intent, and what the admission means, are
all issues for the TOF.
Notes
If the alleged admitter and party
litigant takes the stand and refutes the
suggestion made by the witness of an
admission being made, or qualifies it,
or testifies that it was taken out of
context etc., these are all issues for
the TOF who can accept all, none, or
part of any witnesses’ evidence.
Notes
When “confessions” are admitted against
an accused in a criminal trial, they are
reported by those direct witnesses who
heard the confession. They are admissible
at the instance of the Crown, and they are
admissible as nothing more than a basic
application of the admission/party-litigant
exception (note: although in criminal law, if
they are made to a person in authority, the
Crown will also have to prove voluntariness
beyond a reasonable doubt as a precondition of admissibility).
Notes
The same exception, however,
applies to civil law. If the Defendant,
for example, has allegedly admitted
that a contract was in place, and was
breached, this can be called through
a direct witness by an opposing party.
Notes
The admissions do not have to be entirely, or
expressly “against interest.”
However, admissions of a party litigant are only
admissible at the instance of a party adverse in
interest, and at their option.
IOW, the admissions exception does not operate
to alleviate the general rule against oath-helping,
including the general rule against prior consistent
statements being admitted at the request of the
uttering party.
Notes
The law includes in the notional definition of “party
litigant”, those for whom the action is advanced.
For example, in the criminal law, it will include the
alleged admissions of the complainant. Imagine,
for example, a complainant’s admission to another
(who is called as a witness) that the event charged
“never happened” or was consensual. The source
of the testimonial value is the complainant, but the
law allows this evidence to be called through a
direct witness, even if it is the accused.
Notes
“Admissions” can be verbal, written,
express, implied – IOW as simple as
a nod or a wink.
“Admissions” can also be by conduct,
silence, or even by adoption.
Admissions by Adoption
If the testimony of the admission
witness is that they were present
when a party litigant, having heard
what another person had to say (even
if that person is not called), adopted
same, then the words of the other, as
well as the adoption of same is
admissible as the admission of the
party litigant.
Admissions by Adoption
Example: person “A” (not a party
litigant), says in the presence of “B”, a
party litigant, to “C”, a party litigant
adverse in interest “we will not stop
until your business is run into the
ground.” “B” then states, according to
witness “X” who witnessed the
conversation “yeah, you better believe
it”. All of the above words are then
admissible for POTOC against party
litigant “B” at the instance of “C”.
Sopinka Implied Admissions 6.445
Any conduct, action or demeanour
may amount to adoption of the
allegation.
Even an express denial – as it may be
denied in such a manner and under
such circumstances as may lead a
jury to disbelieve him, from which an
acknowledgment is inferred.
Implied Admissions
Sopinka 6.444: TOL to take care,
determine admissibility on a “some
evidence” standard – ie. could a
reasonable jury, properly instructed,
find that the conduct amounted to an
admission?
Implied Admissions
Care Should be Taken: 6.446
TOL to take into account all of the
circumstances, including: (1) that the party
clearly heard and understood it; (2) the
matter was a subject of which the
purporting implied admitting party was
aware; (3) the party was not suffering from
a physical or mental disability or confusion;
(4) who spoke the words of allegation (ie. a
child?).
Civil Example
Where one person receives a bill for
goods sent to another and that person
makes no objection after a
reasonable lapse of time, the bill and
lack of objection are some evidence
to the effect that the goods were
delivered for the credit of that person,
Admissions by Conduct
The admission, of course, may be nothing
more than a “wink” in response to an
allegation by another, whether or not that
other is called as a witness, as long as
there is direct evidence of it.
e.g. Other person “A” to party litigant “B”,
“you sure didn’t give him a chance to fight
back”. Party litigant “B”, in response,
smiles, and winks. A party adverse in
interest may very well want to call this
evidence in the assault trial (civil or
criminal), especially when the defence is
“self-defence.”
Admissions by Silence
The law says that if a party litigant is
silent in circumstances that “call upon
him to respond”, his silence may be
treated by the TOF as an admission.
The TOL would allow it in as an
admission under this exception.
Again, assuming a direct witness is
available to testify to same.
Admission by Silence Sopinka
6.442
Silence can be taken as an admission
where a denial would be the only
reasonable course of action expected.
No such assent can be inferred where
the accused has a right to silence: ie.
during a police investigation.
Admissions by Silence
Witness X testifies as follows: I was
present when A (not called) approached
party litigant “B” and stated “You slept with
my spouse and aborted her pregnancy,
how could you do that?” X further testifies
that party litigant “B”, in a position to hear
A’s allegation, simply stood there.
The TOF may find this to be an admission
by silence.
Admissions: Other Rules
General rule: An admission is ONLY admissible
against the utterer. IOW, we are only held to our
own words.
This makes a difference in a multi-party or multiaccused trial. Even if the admission touches on
the actions of others, the TOF will be instructed
that the admission is only admissible against the
alleged uttering party, and not his co-accused or
Defendants etc. Just as an utterance of an
individual party-litigant may not be admissible
against his corporation, which in law, is a separate
legal entity (subject to considerations of agency),
even if they are both sued for the same delict.
Admissions by Agent
Admissions by an agent may be evidence
against a [party-litigant] provided that the
admission was made while the agent was
in fact acting in that capacity and was
within his scope of authority.
The same exception is at play, the law is
just recognizing that you may speak
through others – e.g. attorney, or for a
corporation, someone authorized to speak
on their behalf.
Scope of Agency?
Working test: does the declaration fall
within the ambit of the agent’s
employment?
E.g. Morrison-Knudsen Co.: “The errand
boy should not be able to bind the
corporation with a statement about the
issuance of stock …but a truck driver
should be able to bind the company with an
admission of his careless driving …
Similarly, an usher should be able to
committ his employer with an observation
about a slippery spot on the lobby floor.”
Agency Exception: CoConspirator’s Rule
The “co-conspirator’s” exception to the Hearsay
Rule is probably more complicated than it needs to
be.
It is simply recognizing that those who are
involved in an illegal and common purpose (or
legal purposes committed through illegal means),
joint venture, or co-venture, are taken in law to
have appointed each other as “spokespeople” for
the group, so that their words when speaking in
furtherance of the conspiracy and during the
currency thereof will be admissible against each
member of the group.
What this really is, is nothing more than an
exception to the previous rule we discussed,
namely than an admission is only admissible
against the party-litigant utterer.
We are broadening that by saying: an admission is
only admissible against the utterer, and those he is
deemed by law to be speaking for.
In this case, his co-conspirators when he is
speaking in furtherance of the civil or criminal
conspiracy.
What is a Conspiracy?
“an agreement among the parties to
act in concert in pursuit of a common
goal”
“…the agreement of two or more to
do an unlawful act, or to do a lawful
act by unlawful means …”
Who can conspire?
A husband and wife cannot conspire
with each other, but together, can
conspire with others.
Corporations can conspire with each
other or individuals; a corporation can
conspire through its officers.
Once the gist of the conspiracy, the
agreement, is established, the acts
and declarations of one conspirator in
carrying out the common design, may
be given in evidence as proof against
all the conspirators.
Co-conspirator’s Exception
This is actually one area where we
leave the issue of admissibility to the
TOF.
On allegation of co-venture, and
some proof thereof before the TOL,
the TOL allows the acts and
declarations of all the conspirators to
be heard by the TOF.
Co-conspirator’s Exception
The TOF is then told, at the end of the cases for the
parties, that they have heard the various acts
and declarations of the co-venturer’s and should
approach the matter as follows:
(a) First, they should be satisfied on all the
evidence, and to the appropriate standard of
proof, that there was a conspiracy/illegal coventure;
(b) Second, they must find that this accused or
party-litigant is a member of the illegal coventure by his own own act or words (balance of
probabilities), not those of the others;
(c) Third, they are now allowed to consider the
hearsay evidence of the other co-conspirators,
to determine the substantive facts in issue.
Notes on Co-Venturer’s Exception
the co-conspirator’s exception is not
engaged when the evidence is given
at trial by a co-conspirator (ie. this is
what we did), but is engaged when
out of court statements by a coconspirator are used to prove the
case …
IOW, if the co-conspirator, party
litigant or not, is simply on the stand
as a witness to the substantive
events, the Rule is not in play
We know this is not Hearsay, as a
live, direct witness, is giving evidence
under oath, subject to cross and view
of his demenour.
Note
What is important to the coconspirator’s rule is not who is a party
litigant, but whether the source of the
out of court declaration is a coventurer. This is the grounding for
admissibility.
The criminal charge need not be
conspiracy.
Furtherance of Conspiracy
 the acts or declarations sought by the proponent
to be admitted must be in furtherance of the coventure and not merely descriptive or narrative of
the conspiracy.
post-arrest statements to police officers by coconspirators are not generally admissible against
the others, as they are not made in furtherance of
the conspiracy, the same goes for acts and
declarations antecedent and subsequent to the
conspiracy
Examples
Co-conspirator takes stand and gives direct
evidence of facts in issue, including
involvement of our party litigant: Hearsay
Rule not invoked.
Court hears evidence of party litigant who
confesses/makes an admission postconspiracy. Heard through person who
witnessed admission. Rule at play:
admissible under admissions exception,
only admissible against utterer. Even
where all on trial at the same time.
Examples
“A” testifies that he was with B, an alleged
co-venturer, when B explained to him that
“Myself, X and Y, need explosives. Our
plan is to bring down the bridge. Can you
assist us in finding what we need?”
This comment is arguably in furtherance of
an alleged conspiracy. As such, the TOL
will allow the TOF to hear same. And then
….
The TOF will be pointed towards the
direct evidence and are told to decide
first whether there was an illegal coventure. If there was, did Y (the
person before the court) implicate
himself through his own acts and
declarations in the co-venture on a
balance of probabilities? Finally, if
they so find, they can use this
utterance of B, as if it was Y’s own, to