This week, let’s explain what a waiver and hearsay are in the context of criminal law.

What is a waiver?

If you want your charge transferred from one jurisdiction to another, there are a number of caveats. First, the offence cannot be one listed under Section 469 of the Criminal Code (such as murder or treason). Second, you have to plead guilty—if you get a charge transferred and you change your mind, the charge gets sent back to the originating jurisdiction. Third, the attorney general must give consent for this to be done (usually in the form of Crown counsel).

There are a number of considerations for the Crown when deciding whether a transfer is in the public interest. For example, does the accused have substantial ties with the jurisdiction that he or she is attempting to transfer the charges to? (If Mr. X was charged in Abbotsford and he wants his matter transferred to Vancouver, does he live in Vancouver? Does he have other charges in Vancouver and he wants to wrap up everything in one courthouse?) Will the accused get a sentence in the receiving jurisdiction that is reasonably consistent with the originating? Is there significant public interest in the case such that it should be dealt with in the community where it occurred (the Stanley Cup riot cases come to mind here)? Are there significant factors at issue that would require witnesses to be called? These are but some of the questions that Crown counsel has to ask before consenting to the transfer of a charge.

What is hearsay?

Hearsay is any out of court statement that is being used in a trial for the truth of its contents. The general rule is that hearsay is inadmissible subject to a number of exceptions. Hearsay can be verbal, written, or implied (i.e. actions such as nodding one’s head or pointing a finger can be considered implied statements and count as hearsay).

An example of hearsay is the following: In a drunk driving case, Witness 1 testifies that Witness 2 said “the accused was driving the car and he was drunk”. If Witness 1 testifies as to Witness 2’s out of court statement and that statement is being offered for its truth, then it is considered hearsay. A lot of people may wonder why this is a bad thing—it was said by someone who was at the scene so it must be true. Why can’t the judge hear it?

The concern is the inability to test the reliability of the hearsay statement. Our system of justice depends on the calling of witnesses who give their evidence under oath to testify to things that they observed themselves. Their evidence and demeanour must be personally observed by the judge and these witnesses must be subject to cross-examination by opposing counsel. When a witness is giving evidence as to something another person has said, that statement cannot be tested for its truth and reliability.

Keeping with the same example given above, counsel can’t cross examine Witness 1 on what Witness 2 actually saw, why they came to the conclusions they did, where Witness 2 was situated when they made these observations, et cetera. The truth-seeking function of the trial is unacceptably hampered by the inclusion of hearsay evidence.

There are a large number of hearsay exceptions, too many to list and explain in this article. As someone who has practised both as a prosecutor and as defence counsel, I can honestly say that it is sometimes difficult to identify hearsay, to stand quickly enough to make the objection, and then to argue why something should or shouldn’t be admitted at trial. Generally, if a statement is offered simply to show that the statement was made, as part of the witness’s narrative of what happened, or to explain that the statement caused a witness to take a certain course of action, the statement is admissible so long as it has some probative value (some beneficial use to the court). If the prejudicial effect on the accused outweighs any positive use the statement may have, the court may decide to exclude it.

Reasonable Doubt appears on Straight.com on Fridays. The column’s writers, Laurel Dietz and Nancy Seto, are criminal defence lawyers at Cobb St. Pierre Lewis. You can send your questions for the column to them at straight.reasonable.doubt@gmail.com.

A word of caution: Don’t take this column as personal legal advice, because it’s not. It is intended for general information and entertainment purposes only.