Toronto Harbour Commission, Toronto harbour operator's license

The hearsay evidence rule

The justice system in every country embracing English common law has a rule regarding the admissibility of hearsay evidence. Generally, with a few exceptions, it is not admissible in a trial.

What is hearsay evidence?

If I see a crime, or hear it being committed, my evidence would be admissible in court because it is direct, it is what I saw or heard. However, if another person tells me that he saw a crime; my "proof" of the criminal circumstances is hearsay, because it relies on what I was told by the actual witness and not what I saw directly.

Courts rule out hearsay evidence because it is unreliable. It gets filtered by what I believed I was being told. We all know that childrens game where they sit in a circle and one child whispers something into the next childs ear and then that child turns to its neighbour and does the same thing. Eventually, the last child in the circle reveals what it heard and, almost invariably, it is not what the first one whispered.

Much of what goes into news reports is hearsay. A reporter arrives on a scene of an accident and interviews nearby witnesses. If the reporter gets lucky, he may land a person who actually saw the whole thing unfold. More often, he will get quotes from someone who was sitting in their kitchen and heard a big bang and came out to investigate, after the fact. The reporter did not witness the accident and even if he writes up the eyewitness accounts, it is still technically hearsay.

There is first-hand hearsay and then there is second and third-hand hearsay. Often we are told a story that the teller says is reliable because he got it from a cousin who got it from a best friend. When it comes to newspaper columns, which amount to commentary on matters of public interest, sometimes the evidence cited to support the opinions of the columnist is based on such second or third hand hearsay.

I got a sharp reminder of the fallibility of hearsay evidence after I published my last column, Only in Toronto.

In that one, I chided the Toronto police marine division for ignorance and disinterest regarding the boat operators license for Toronto harbour. This was based on a tale related to me by my brother; a tale which he heard from, his friends, the two participants in the story, Donny and John Boasman.

Because of my background and connection to the harbour license, I was immediately intrigued and thought it worth a column. I asked my brother to verify the story with his friends and discover which Caribbean island declared the Toronto license an internationally accepted document. I also asked permission to use their names in the column. My brother dutifully e-mailed his friends with the requests and outlined the story as he had told it to me.

Some time passed. Donny (not his real name) never replied. However, Mr. Boasman responded through my brother, saying only that he was concerned that I spelled his name correctly. I proceeded with the column and sent a draft to my brother and Boasman for comment. I waited a day and got a confirmation from my brother that he had read it, but I heard nothing from Boasman.

Mr. Boasman, by the way, is on his way to being a "crackberry addict." If you are unfamiliar with the term, it applies to somebody who is addicted to their Blackberry and cannot let more than half an hour pass without checking the screen to see if they have received any new e-mails. I once had lunch with a full-blown addict and was unnerved when she checked hers every ten minutes during a two-hour period.

My point is that Mr. Boasman would have received the advance copy in a timely fashion to comment on it.

I filed the column on May 24 and it was published on May 25.

Mr. Boasman e-mailed me on May 26 to point out "errors" in my story. Apparently, the first constable did know about the requirement for the license, but had no information about obtaining it. Eventually, the police called the Toronto Port Authority.

So, I apologize to the Toronto police for suggesting they were ignorant.

However, since the marine division is a specialized part of the police force, it should be on top of the regulatory environment it is charged with enforcing. Knowing about the license, but not knowing about obtaining it is a lesser standard than one would expect from a specialized agency. And, it still leaves open the important question of whether they regularly demand proof of license from boat operators they stop on the lake.

Then, I received a forwarded e-mail from Donny, indicating that the challenge occurred in a port in Virginia, not the Caribbean. It was American authorities that recognized the Toronto license as international. While that change of venue doesnt have the cachet of a Caribbean recognition, it is still not insignificant for boat operators.

Such are the hazards of re-telling hearsay stories.

Gary Reid is a freelance writer and a public affairs consultant. Gary Reid, Opinion 2006 2005 2004 2003 2002