Statements of Declarant Not Called as Witness (Admissible Hearsay)

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.

7.13 Statements of Declarant Not Called as Witness (Admissible Hearsay)

Note[40]

(Last revised March 2011)

[1] You have just heard (NOW) give evidence of what (NOD) said to him/her about (describe briefly hearsay statement). (NOD) is not here to testify.

[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, you should use your common sense. Consider the circumstances in which the conversation took place, and anything else that may make (NOW)’s evidence more or less believable.

[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 as evidence of what actually happened.

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

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

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. The fact situations in R. v. Khan, [1990] 2 S.C.R. 531 and R. v. Smith, [1992] 2 S.C.R. 915 exemplify the circumstances in which this instruction may be helpful.