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Evidence - Hearsay - Expressive Conduct Exception. R. v. Borel
In R. v. Borel (Ont CA, 2021) the Court of Appeal held that expressive conduct could be subject to a hearsay analysis:[42] There is another confusing aspect of the trial judge’s ruling. Early in her reasons, the trial judge held that the actions of the complainant, in shaking her head or nodding, were not statements, and thus were not hearsay. She said: “However, any actions observed by someone else, in this case, the emergency care personnel, are not hearsay, and [the EMS attendant] is free to testify about what she says she observed [the complainant] do.” Consequently, the trial judge held that those actions were admissible without any hearsay analysis. The respondent admits that this latter finding is clearly wrong. “Hearsay typically consists of spoken words. It can, however, consist of conduct.”: R. v. Badgerow, 2014 ONCA 272, 119 O.R. (3d) 399, at para. 106, leave to appeal refused, [2014] 3 S.C.R. v. The same point is made in Khelawon, at para. 34: “hearsay evidence includes communications expressed by conduct”.
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