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Evidence - Hearsay - State of Mind Exception

. R. v. Dent

In R. v. Dent (Ont CA, 2023) the Court of Appeal considered the 'state of mind' hearsay exception:
[98] Nor am I persuaded by the other illustration Ms. Dent offered, namely the trial judge’s finding that Ms. Oxley had “pro-social informative initiatives” relating to the open sharing of information. This finding did not depend on an inadmissible hearsay use of electronic statements Ms. Oxley made. In appropriate cases, words spoken out of court can stand as circumstantial evidence of a speaker’s state of mind. In this case, for example, words spoken by Ms. Oxley to Ms. Dent about what they should do with the information they were gathering about Mr. Lalonde could arguably be used as circumstantial evidence of her objective. Even if her statements could not properly be used as circumstantial manifestations of her relevant state of mind in the fashion I have just described, they would qualify as admissible hearsay statements of her present intention. They were contemporaneous statements of Ms. Oxley’s present intention made in a natural manner and not under circumstances of suspicion: R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 168; R. v. Cote, 2018 ONCA 870, 143 O.R. (3d) 333, at para. 22; R. v. P.(H.R.) (1990), 58 C.C.C. (3d) 334, at p. 341 (Ont. H.C.J.).
. R v Cote

In R v Cote (Ont CA, 2018) the Court of Appeal sets out the state of mind exception to the hearsay exclusion rule:
[22] In Starr, at para. 168, Iacobucci J., for the majority, quoted R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915 at p. 925 stating that an “exception to the hearsay rule arises when the declarant’s statement is adduced in order to demonstrate the intentions, or state of mind, of the declarant at the time when the statement was made”. He endorsed the conditions for this exception expressed in J.H. Wigmore, Evidence in trials at common law, revised ed. by J.H. Chadbourn (Boston: Little Brown, 1976) vol. 6 at para. 1725, p. 129, that the statement must “be of a present existing state of mind, and must appear to have been made in a natural manner and not under circumstances of suspicion” (emphasis in original). Naturally, the present state of mind of the declarant must also be relevant to the proceedings: R. v. C.(M.), 2014 ONCA 611 (CanLII), 314 C.C.C. (3d) 336, at para. 63.


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Last modified: 30-06-23
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