Statements of Hearsay Declarant Not Called as Witness (R. v. Khan; R. v. Smith)

Note: Specimen jury instructions serve as a template that trial judges must adapt to the particular circumstances of each trial, not simply read out in whole. They are not designed to be delivered "as-is." More information about the use of specimen instructions is found in the Preface and A Note to Users, which you can find here.

11.28 Statements of Hearsay Declarant Not Called as Witness (R. v. Khan; R. v. Smith)

Note[118]

(Last revised June 2012)

[1] (NOW) testified about what (NOD)[119] said to him/her about (describe briefly hearsay statement). (NOD) was not here to testify.[120]

[2] When you consider this evidence, you have to decide what, if anything, (NOD) said to (NOW). In deciding whether (NOD) said these things, or any of them, take into account the condition of (NOD) and (NOW) at the time of the conversation, the circumstances in which the conversation took place, and anything else that may make (NOW)’s story more or less reliable.

[3] If you find that (NOW) has accurately reported any or all of what (NOD) said, you may rely on those parts of (NOW)’s testimony.

[4] You should be careful when you determine how much or little you will rely on this evidence. It might be less reliable than other evidence that has been given. (NOD) was not under oath or affirmation. You did not see or hear (NOD) testify. Unlike the witnesses who testified before you, s/he could not be cross-examined.

[5] Do not consider this evidence by itself. It is only part of the evidence in this case. Take it into account, along with other evidence that may make it more or less reliable. It is up to you to decide how much or little of it you will believe or rely on to decide this case.[121]

[118] This instruction is appropriate in cases in which a statement of an absent hearsay declarant has been introduced through a witness who is the hearsay recipient and admitted otherwise than in accordance with R. v. B. (K.G.), [1993] 1 S.C.R. 740. R. v. Khan (1990), 59 C.C.C. (3d) 92 (S.C.C.); R. v. Smith (1992), 75 C.C.C. (3d) 257 (S.C.C.) and R. v. Starr, [2000] 2 S.C.R. 144, are examples of the circumstances in which this instruction may be helpful.

[119] NOD means “name of declarant”; i.e., the person who makes the statement introduced through the witness who is the recipient.

[120] Further instruction may be required where the declarant has been declared incompetent, rather than simply not called as a witness.

[121] This instruction may be amplified to point out evidence that makes the hearsay statement more or less reliable.