- By: Aswani Datt
- out of court statement
- May 22, 2026
- Comments (0)
Evidence relevant to an issue at trial may nevertheless be inadmissible if it is subject to an exclusionary rule, such as the rule against hearsay. Hearsay is an out-of-court statement tendered for the truth of its contents and is defined by the use to which the statement is sought to be put, namely, to prove that what is asserted is true. Hearsay is presumptively inadmissible mainly because, without the declarant in court, it is often difficult to assess the truthfulness of the statement.
However, there are exceptions. A party seeking to rely on an out-of-court statement for the truth of its contents can attempt to have it admitted under one of the common law categorical exceptions or under the more flexible principled exception.
Under the principled exception, hearsay evidence can only be admitted when the party tendering it demonstrates on a balance of probabilities that it is necessary and sufficiently reliable, a determination normally made through a voir dire on admissibility. Where no voir dire is held, the question is whether the trial judge erred in law by relying on the evidence for an impermissible purpose without having properly admitted it in evidence. In reviewing how a trial judge used an out-of-court statement, appellate courts must take a functional and contextual reading of the reasons while being mindful that trial judges are presumed to know the law.
Appellate intervention is not justified merely because the trial judge’s reasons are ambiguous. Rather, the reasons must disclose an error or an ambiguity that renders the path taken by the trial judge unintelligible, frustrating appellate review of the use of the out‑of‑court statement.
An error of law is presumed to be prejudicial to the accused, and the Crown bears the onus of establishing the absence of prejudice under the curative proviso.
Citation: R. v. Saddleback, 2026 SCC 18
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