Table of Contents
Format for this Course ............................................................................................................................................ 4
Introduction to Evidence ......................................................................................................................................... 4
Evidentiary Rules ................................................................................................................................................ 4
Sources for Evidentiary Rules ............................................................................................................................ 4
Timing  when are issues dealt with in a trial .................................................................................................. 5
PBS Frontline Documentary “Death By Fire” .................................................................................................... 5
3 critical contexts for evidentiary rules and concepts ............................................................................................. 6
R. v. Plewes 2000............................................................................................................................................ 7
R v Mullins-Johnson 2007 .............................................................................................................................. 8
R v Lawes 2006 .............................................................................................................................................. 8
ONE OVER-ARCHING PRINCIPLE OF EVIDENCE: QUALIFIED SEARCH FOR THE TRUTH ................ 8
Probative v Prejudicial Balance .......................................................................................................................... 8
Assessing Probative Value and Prejudicial Effect: ............................................................................................. 9
Prejudicial Effects ............................................................................................................................................... 9
R v Morris 1983  admissibility of evidence =/= weight of evidence .............................................................. 9
R. v. Arp 1998 ................................................................................................................................................. 9
R. v. F.F.B. 1993 ........................................................................................................................................... 10
When defense wants to lead evidence, there’s also a probative/prejudicial balancing test .............................. 10
Types of Evidence................................................................................................................................................. 11
2 basic types of evidential categories: .............................................................................................................. 11
R v Munoz 2006................................................................................................................................................ 12
Real Evidence ................................................................................................................................................... 12
R v Schaffner 1988 ....................................................................................................................................... 13
R v Nikolovski 1996 ..................................................................................................................................... 13
R. v. Penney .................................................................................................................................................. 13
R. v. Kinkead ................................................................................................................................................ 13
Judicial Notice .................................................................................................................................................. 14
R. v. Daley .................................................................................................................................................... 14
Extrinsic Misconduct Evidence: Bad Character of the Accused ......................................................................... 14
General Inadmissibility ..................................................................................................................................... 14
R. v. Cuadra .................................................................................................................................................. 15
Evidence of Habit ............................................................................................................................................. 16
Character Evidence ........................................................................................................................................... 16
R. v. Grant (2015) ......................................................................................................................................... 18
Post Offence Conduct: ...................................................................................................................................... 19
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White v. The Queen .......................................................................................................................................... 19
R. v. Peavoy ...................................................................................................................................................... 20
R. v. S.B.C. ....................................................................................................................................................... 20
White #2 ........................................................................................................................................................ 21
Bad Character of the Witness ............................................................................................................................... 21
Canada Evidence Act (CEA), Section 12 ......................................................................................................... 22
R v McFayden 2002 ...................................................................................................................................... 22
R. v. Cullen ................................................................................................................................................... 23
ADMISSIBILITY IS A BIG THING THIS SEMESTER – not even hearing the evidence is a problem ....... 23
R. v. Murrin................................................................................................................................................... 23
The Vetrovec Witness ....................................................................................................................................... 23
R v Vetrovec 1982 ........................................................................................................................................ 24
R v Khela 2009 ............................................................................................................................................. 24
Identification Evidence ..................................................................................................................................... 25
R. v. Gonsalves ............................................................................................................................................. 26
R. v. Hay ....................................................................................................................................................... 26
Opinion Evidence.................................................................................................................................................. 27
1.
Statutory Rules ........................................................................................................................................... 28
2. Common Knowledge .................................................................................................................................... 28
R v J (J-L) 2000  novel area ...................................................................................................................... 29
General Rules for Experts ................................................................................................................................. 29
R v Graat 1982 .............................................................................................................................................. 29
R v Mohan 1994  established area of evidence ......................................................................................... 29
R v Abbey 2009 ............................................................................................................................................ 30
White Burgess Langille Inman v. Abbott and Haliburton Co. ..................................................................... 31
Necessity ........................................................................................................................................................... 32
R v McIntosh 199? ........................................................................................................................................ 32
R v Perlett 2006 ............................................................................................................................................ 32
Ultimate Issue ................................................................................................................................................... 32
R v Bryan 2003 ............................................................................................................................................. 33
R. v. Llorenz ................................................................................................................................................. 33
Foundation ........................................................................................................................................................ 33
R v Jordan 1983 ............................................................................................................................................ 33
 Before any weight can be given to an expert’s opinion, facts upon which opinion is based must be found
to exist ............................................................................................................................................................... 33
 Hearsay evidence can be accepted as original evidence (from an expert) insofar as it relates to evaluation
of expert’s opinion ............................................................................................................................................ 33
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R v Lavallee 1990 ......................................................................................................................................... 33
 Each of the facts upon which expert opinion is based on does not have to be proven  as long as there is
some admissible evidence to establish foundation for the opinion, testimony cannot be ignored ................... 33
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BUT the more the opinion relies on facts not proven, the less weight the opinion can hold .................... 33
 If comes to a point where opinion is based on mainly evidence that hasn’t been admitted, then cannot use
the expert’s opinion........................................................................................................................................... 34
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There’s also some pro/pre balancing ......................................................................................................... 34
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Further teased apart: ................................................................................................................................... 34
o
Evidence obtained by expert and acted upon within scope of expertise  independent proof not needed
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o Evidence obtained by expert from a party to litigation about a matter directly in issue  independent
proof needed...................................................................................................................................................... 34
R v Worrall 2004 .......................................................................................................................................... 34
A New Framework for Admissibility ............................................................................................................... 34
Witnesses .............................................................................................................................................................. 34
Ability to Testify ............................................................................................................................................... 34
Canada Evidence Act ss 13-16.1 .................................................................................................................. 34
Order of Witnesses ............................................................................................................................................ 36
Direct Examination ........................................................................................................................................... 36
Cross-Examination................................................................................................................................................ 38
Canada Evidence Act s 10 (Cross-Examination) .......................................................................................... 38
R v Lyttle 2004 ............................................................................................................................................. 39
R v McNeill 2000.......................................................................................................................................... 39
R v R(AJ) 1994 ............................................................................................................................................. 40
Re-Examination ................................................................................................................................................ 40
R. v. Sipes ..................................................................................................................................................... 41
Rebuttal Evidence ............................................................................................................................................. 41
Attacking Credibility of Own Witness ................................................................................................................. 42
R. v. Milgaard 1971 ...................................................................................................................................... 44
R v S(CL) 2011 ............................................................................................................................................. 43
R. v. Cassibo 1982 ........................................................................................................................................ 45
R. v. Malik 2004 ........................................................................................................................................... 45
Hearsay ................................................................................................................................................................. 46
R v Khelawon 2006 ...................................................................................................................................... 47
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Format for this Course
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2 lectures/day
DO THE READINGS
4 pages of notes allowed in the exam (modified open book)
Introduction to Evidence
Law of evidence provides lawyers with rules and principles that govern admissibility of material offered by
them in an effort to prove/disprove existence of material fact  testimony, documents, physical objects
Evidence: means by which attempting to prove/disprove essential facts of case
 Leading evidence and arguing evidence is the stuff that matters
 Many cases turn on whether evidence found to be admissible or not
 DECIDES CASES, DECIDES THE RESULTS AND DECIDES AN ACCUSED’S FATE
Evidentiary Rules
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Issue of admissibility will be the focus
But admissibility is not the be-all end-all; evidence can be admissible but still have restrictions/limitations
on it (not admissible for all purposes)
Will also look at issues of weight  just because admissible, not necessarily reliable
Most of these rules based in principle (this is what we call the principled approach)  rules should serve
proper principles, if don’t, should be ignored/eradicated
o Rule-based approach is opposite (rules that existed historically and must be followed (i.e. hearsay
evidence))
Rules that reflect principles that are no longer accepted are also eradicated
o As a result, very few random rules
Sources for Evidentiary Rules
1. Common Law  rules can be changed in the courtroom (bulk of what we will be dealing with)
2. Statutes  Provincial and Federal (Canada Evidence Act and BC Evidence Act)  our focus will be on
federal-type proceedings with starting point being criminal jury trial because strictest rules of evidence
applied here (because someone’s liberty is on the line, non-professionals making the ultimate decision)
 Advantage: everything is right there in one place; can help with self-represented litigants
 Disadvantage: to change them, have to go through legislative reform
3. Charter
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a few sections that specifically deal with evidence rules
but also has indirect impact on common law rules of evidence (Charter interpretation)
using Charter to strike down/directly affect statutory rules of evidence
Timing  when are issues dealt with in a trial
1. Before trial begins
 Bulk of issues dealt with before the trial even begins  need to know what evidence can be brought in
so that lawyers can prep their cases accordingly and so the issues can be dealt with in an organised
way
 Everyone knows what the rules are before the game begins
2. During Trial
 most problematic and terrifying part of trial because not anticipated
3. On appeal
 Admissibility issues regarding a piece of evidence
PBS Frontline Documentary “Death By Fire”
found at http://www.pbs.org/wgbh/pages/frontline/death-by-fire/
Treating family in respected manner = getting benefit of the doubt
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Todd Willingham  abundance of evidence to show that he was wrongfully convicted, that fire was
actually not deliberately set, but it’s too late now
o When smoke has nowhere to escape creates huge hot cloud that’s desperate for fuel  anything
slightly flammable will explode into flames
o Bringing in science to challenge “expert evidence” new evidence entirely changes the case (and
the outcome…)
The bottom line: Issues of evidence can result in people getting convicted based on bad evidence
Fundamental Rule of Evidence: all evidence which is relevant and material is admissible until proven
otherwise
 however, some things are presumptively inadmissible
Presumptively Admissible
Eyewitness Identification
Fact of a Prior Conviction (Corbett)
Child Witness
Confessions of Accused
Information where a no class privilege is claimed
Presumptively Inadmissible
Extrinsic Misconduct Evidence
Expert Opinion
Prior Inconsistent Statements
Hearsay
Statement Obtained in Breach of Charter rights
Evidence of Silence
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3 critical contexts for evidentiary rules and concepts
1. Our trials operate through an Adversarial System
 In alternative systems, a lot of power put into hands of commissioner working with commission
counsel who decide what evidence and witnesses can be brought in  commissioner is put in charge
 wears multiple hats
 in adversarial system judge is given critical role which is neutral
 evidentiary decisions made by counsel (judge just listens and tries not to intervene)
 if judge is improperly intervening – can be challenged on appeal
 Judge has an active role too: deciding which evidence is admissible/not
 Adversarial system allows for Qualified search for truth
o Not a scientific inquiry  impartial judge remains relatively passive  does not conduct inquiry
nor investigate
 Exemplified in Phillips v Ford Motor Co
o Primary function of court = to do justice
o one side presents evidence, the other side tests it, attempts to rebut it, first side has
opportunity to defend it etc
o In this way, truth emerges (this system is not without criticism though)
 Because the judge is relatively passive, a lot of pressure put on counsel to make decisions – what
evidence to use, what not to use etc
 in R v Swaine  Crown can’t force you to lead evidence on something don’t want to lead; but some
exceptions (opening the door to some evidence/giving license to the Crown to bring up stuff now that
you brought it up first)
2. Tied to Crown Disclosure
 never underestimate the job of police officers  they start with nothing and have to piece the case
together
 Crown has obligation (because of accused’s Charter right) to disclose all relevant info to Defense (R v
Stinchcombe 1991)  duty is not reciprocal (R v Peruta 1993) (some exceptions: i.e. alibi has to be
disclosed)
o Info in possession of Crown not property of Crown to be used for conviction but property of public
to ensure justice is done
o Turning over all info important because kept finding that wrongful convictions usually occurred due
to some investigative material (evidence) not being turned over (would have been critical to the
defense)
o Police and Crown considered one unit btw – both have to hand over all info to defense so that
accused can fully understand investigation, use info as potential source of defense evidence, and
thus adequately prepare their defense
o can be exculpatory or not – as long as some relevance, needs to be disclosed
o if irrelevant, don’t have to disclose but judges have warned Crown to err on side of caution and
disclose anyway just in case
3. Operate on Burden of Proof
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Can’t consider evidence in isolation
In civil cases: standard is balance of probabilities; in criminal it’s beyond a reasonable doubt
R v Starr 2000  proof beyond a reasonable doubt lies much closer to ‘absolute certainty’ than to a
‘balance of probabilities’
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credibility is the other time issues of burden of proof come up
o when get two different stories from complainant and accused, tendency to want to balance the
two sides of the stories
 but a problem arises because not enough to go from probability to beyond a reasonable
doubt  but need to get beyond a reasonable doubt to convict
 may acquit accused when you don’t believe him/her, and may acquit even if you believe
complainant
o doubt based on reasonable possibilities
Trier of fact does not “choose” between competing versions of incident
 R v S (JH) 2008  trial is not a choice between two competing versions of events; where credibility is
central issue in jury trial, judge must explain relationship between assessment of credibility and
Crown’s ultimate burden to prove guilt of accused to the criminal standard (BARD; this burden never
shifts)
o Lack of credibility on part of accused does not equate to proof of his/her guilt BARD  any
reasonable doubt must be resolved in favour of the accused
o to avoid merely balancing to decide which story to believe  WD Test
R v W(D) 1991  approach below not an appropriate tool for/does not apply to civil cases (because BOP
entails a balancing (comparing) of stories)
1. if believe evidence of accused, must acquit
2. if do not believe testimony of accused but are left in reasonable doubt about it, must acquit
3. even if not left in reasonable doubt, must ask whether on the basis of evidence jury does accept
whether convinced BARD by evidence of accused’s guilt (does Crown evidence go BARD)
Should there be some basic standard for evidence to be considered admissible?
 Evidence = all the things brought up
 Facts = things jury choose to accept from the evidence given (filtering process)
 Juries used to be instructed to boot out anything that don’t accept on a piece by piece basis/exclude
evidence that you neither believe or accept  BUT problematic because
o pre-screening procedure encourages piecemeal approach
o getting rid of stuff that might have been the basis for a reasonable doubt (because don’t
believe or accept it)
o Crown evidence should never be considered on a piece-by-piece basis anyway
R. v. Plewes 2000
Miller Error  it is an error to instruct jury to engage in two-stage process one at the fact-finding stage
and the other at the verdict stage, applying reasonable doubt at each stage
Have to look at all the evidence that’s relevant, as a whole/together
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R v Morin 1988 standard of proof function is not the weighing of individual items of evidence but the
determination of ultimate issues
o jury or trier of fact must consider the evidence as a whole and determine whether guilt is
established by the prosecution BARD; jurors need not agree on any single fact except the ultimate
conclusion
o do not apply burden of proof to each individual piece of evidence
Should there be an “innocent” verdict?
 no
R v Mullins-Johnson 2007
Factual finding of innocence does not fall within purpose or ambit of criminal law  only look at whether
Crown was successful in proving its case BARD (leads to guilty verdict) or not (acquittal)
R v Lawes 2006
Trial judges can make direct or indirect comments on evidence provided that
1. It is made clear to jury that they are not bound by judge’s views
2. Judge’s opinions are not stronger than the facts warrant
3. Opinions are not overstated to the point where it is likely that jury will be overawed by them
ONE OVER-ARCHING PRINCIPLE OF EVIDENCE: Probative v Prejudicial
Fair trial
 what principles are engaged in a fair trial?
o Truth
o Justice
 These two are sometimes related but not always (can get at the truth but may not have gotten it in a just
way)
 Truth has to coincide with justice  may even lead to limiting the truth
 Weighing the good v the bad  trying to evaluate if good or bad for our evidentiary principles
Probative v Prejudicial Balance
Each piece of evidence must pass the probative v prejudicial test  if Pro > Pre = admissible
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Probative: engages truth seeking function: does this evidence help us in finding one of the essential facts
we need for this case; will it help prove something essential in the case
o Concerns both relevance and materiality
Prejudicial: is there potential prejudice that could arise from allowing this evidence
o evidence can be probative by helping search for truth but can also divert from search from the
truth/undermine search for truth
o there can be other forms of prejudice: prejudice to certain societal relationships (going through
person’s medical records, diary, talking to their lawyer etc); violates certain fundamental privacy
rights (searching premises without warrant); prejudices basic efficiency of our system (too many
witnesses being brought in)
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o so basically prejudice against the accused (affecting TOF’s reasoning process and emotional levels)
and prejudice against the administration of justice
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SCC has held that search for truth is primary goal of law of evidence (>justice)
o R v Levogiannis 1993: Accused not entitled to every possible benefit—consider
witnesses/victims/children
o R v Darrach 2000: POFJ can be respected without accused being entitled to the most favourable
procedures that could possibly be imagined; procedures cannot be crafted to take only accused’s
interests into account or procedures that would distort truth-seeking function of a trial
Witness testimony as merely a statement of belief/opinion about past fact (that cannot be independently
tested)
Search for legal (rather than factual) truth
Assessing Probative Value and Prejudicial Effect:
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For evidence to be admissible, has to have some probative value  it’s a sliding scale (some evidence can
have more or less probative value)
Then have to see if any prejudicial effect – if none, then you’re fine; if has some, have to do balancing and
balancing boils down to relevancy (look at Arp) and materiality
law presents no test of relevancy  must use common sense, logic
o Relevancy is therefore a question of law reviewable on appeal
Btw, a Premise allows inference to be made; if no premise, evidence is not relevant  this is a principle
which forbids receiving anything irrelevant/not logically probative
R v Watson 1996  distinction between relevancy and sufficiency
o Test for relevancy is less stringent than test for sufficiency
Prejudicial Effects
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Extrinsic misconduct evidence  general bad character evidence (makes person generally look like a bad
person)
o this evidence, although probative, might tempt trier of fact to convict an accused based on the
other “bad stuff” a person has done
o general propensity reasoning  person that tends to do bad things “probably did this too”  THIS
IS NOT GOOD REASONING; LEADS TO LOT’S OF WRONGFUL CONVICTIONS because not a good
indicator of whether someone guilty or not (moral prejudice)
o Primary rule of exclusion regarding evidence: disposition evidence (the fact that accused is the sort
of person who would be likely to have committed offence) though relevant is not admissible
if a fact does not matter, it is immaterial  a piece of evidence may be immaterial for one part of the case
but become material for another
there is no minimum probative value required for evidence to be relevant
R v Morris 1983
admissibility of evidence =/= weight of evidence
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For one fact to be relevant to another there must be a connection between the two
R. v. Arp 1998
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basic rule re: evidence  all relevant evidence is admissible (relevancy depends on facts of case)
evidence must “increase or diminish the probability of the existence of a fact in issue” to be
logically relevant
o BUT evidence of propensity or disposition is excluded as an exception to the general rule
that all relevant evidence is admissible. (because an example of extrinsic misconduct
evidence)
o BUT evidence which tends to show bad character or a criminal disposition on the part of the
accused is admissible if
(1) relevant to some other issue beyond disposition or character, and
(2) the probative value outweighs the prejudicial effect.
evidence of propensity or disposition may be relevant to the crime charged, but it is usually
inadmissible because its slight probative value is ultimately outweighed by its highly prejudicial
effect.
R. v. F.F.B. 1993
All relevant evidence is admissible unless it is barred by specific exclusionary rule
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Accused charged with sexual assault but evidence also brought up that outside of the sexual context,
dominated the kids, physically and verbally abusive, controlling etc  this other evidence makes him look
like a general bad person (example of extrinsic misconduct evidence)
o It would usually have no probative value  If has no probative value, and prejudicial, then out
o but here it had probative value  why?
 He raised the issue of credibility of the claimants – why did they wait so long to complain?
 By doing this, he opened the door for Crown to bring up this “extrinsic” evidence which was
no longer extrinsic now  kids didn’t bring up the abuse BECAUSE accused was controlling,
threatening etc
This case is an excellent example of how extrinsic evidence which would otherwise be irrelevant becomes
probative
o However, new trial ordered and evidence considered inadmissible because jury wasn’t properly
charged
o Just because something is admissible, doesn’t mean that’s the end – jury needs to be provided
with limiting instruction (what evidence can and cannot be used for)
 For example: Cannot be used for deciding that the person is a bad guy and so probably did
the crime, or to convict based on the abusiveness (crimes not currently being asked to
decide on)
 Even if evidence properly admitted, if jury not charged properly as to the limited purposes
for which the evidence could be used grounds for new trial
Bottom line: If prejudicial evidence is presented to jury, jury cannot simply be left with it without any
instruction on how to use that evidence
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Section 686(1)(b)(iii) of the Criminal Code, is for use in exceptional cases only
When defense wants to lead evidence, there’s also a probative/prejudicial balancing test
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They look like the same test but test for defense is a little bit easier to meet than for Crown
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o For Crown-led evidence, if preju > prob = inadmissible
o But for defense-led evidence to be inadmissible probative value must be substantially
outweighed by its prejudicial effect for (Seaboyer 1991) (prejudicial+ > probative)
Basically: If close call, but Crown evidence, Judge probably won’t bring it in, but when it comes to defense
evidence, if same close call, judge will probably bring it in
Types of Evidence
2 basic types of evidential categories:
Direct: if believed, sufficient to prove a fact in issue (eyewitness account)
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don’t have to do anything further with this type of evidence except for accept it; directly leads to conclusion in
the case
1. Eyewitness – person who knows accused recalling the events
2. Video surveillance of events that occurred
3. Detailed confession from the accused themselves
Possibility of error:
o Reliability: witness mistaken
o Credibility: witness is lying
Circumstantial: trier of fact must infer a material fact from related facts
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very common form of evidence, not a lesser kind of evidence (almost all evidence is circumstantial)
Not ready-made for use  have to do something else with it (draw an inference from the circumstances)
Does not carry potential to be conclusive of guilt
Possibility of error:
o Reliability
o Credibility
o wrong inference (that’s how direct and circumstantial evidence differ  this extra source of error
DOESN’T make circumstantial evidence lesser/worse though)
Motive evidence is a classic piece of circumstantial evidence btw
Circumstantial evidence cannot be speculative or else inadmissible  has to be a reasonable inference (Munoz)
Judge should not be pre-judging the evidence
Sometimes, even things that might appear to be direct may actually be circumstantial (because rare that one person
saw EVERYTHING)
Also, the two types of evidence can also be combined
Modern approach when charging juries: difference between the two types of evidence mentioned but generally,
judges encourage juries to group both types of evidence together and to make decisions from it
Rules regarding circumstantial evidence:
1. Cannot be speculative
2. Evidence need only be able to support one reasonable/possible inference
3. When assessing reasonableness, look at evidence as a whole (individual pieces may not lead to reasonable
inference on own)
Law of evidence is governed by inductive reasoning; process by which logical connections are drawn between proposed
evidence and material facts
In order to convict on the reasonable doubt standard, have to be convinced that evidence as a whole supports the
inference that the accused is guilty and that there is no other reasonable inference
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R v Munoz 2006
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Inference drawing from circumstantial evidence is impermissible if
1. Primary facts are not established
2. Proposed inference does not reasonably or logically follow from established primary facts
 Where an inferential gap exists, can only be properly overcome by evidence
 Cannot be a speculative or hypothetical inference – there has to be reasonable probability that conclusion
follows
 Reasonable probability does not mean only the most obvious or easily drawn inferences
3 modes by which TOF may acquire knowledge:
1. testimonial evidence
2. circumstantial evidence
3. real evidence  must be relevant (genuine)
Real Evidence: Objects, Photos, Videos, Documents
remember: what we are trying to do here is to recreate the events that occurred
Objects
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bringing scene to the jury; tangible objects from the actual scene; gives jury first-hand perspective
cops arriving at the scene have very important steps they need to take to ensure a chain of continuity for
Crown
o to create chain of continuity, will want to photo and video everything in its original state
o then put it in evidence bag and seal it
o then create a record of everything that happens to that piece of evidence from that point on, until it
gets to the court (requires signing in and out/constant tracking of the item)
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counsel seeking to tender a piece of real evidence must follow specific steps
evidence must be authenticated to ensure that the thing is the same one from the scene (otherwise no
probative value) ways to do this:
1. present chain of continuity
2. call witness with knowledge of it
3. ask for description
4. show it and confirm
5. enter exhibit
R v MacPherson 2005
Breaks in chain of continuity reduce weight of real evidence, however proof of continuity not a legal
requirement and gaps in continuity not fatal to Crown’s case unless raise reasonable doubt about exhibit’s
integrity
Photos/Videotapes
Like all other evidence, have to be authenticated
 how do you authenticate a video? (or a picture?)
 having a witness who can support the contents of the photograph or video (matches up to what they
remember)
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expert testimony by the person who set it up, works with those specific recording devices etc
ask the photographer/videographer themselves
R v Schaffner 1988  photos and videos admissible if
1. accurately represent the facts
2. no intention to mislead/not fundamentally misleading
3. verified on oath by person capable to do so
R v Nikolovski 1996  once established that tape not altered & depicts crime scene, it is admissible and relevant
evidence; camera is super-witness that remains unbiased, calm, collected; “dispassionate recording of events” (dissent:
observations untested by cross-examination); cameras do not make mistakes or experience stress
R. v. Penney
 Cautionary tale!!
 Some factual issues are very difficult to describe (eyewitness testimony not the best way to go)  use
visual evidence (video/photos) instead
 However, if prejudicial > probative, will not be admitted
 What is evidence being adduced for is an important question here
 Gaps in the film not an issue usually  generally go to weight and not admissibility (let’s trier of fact see at
least some of the video evidence)
o But here, AR has temporal element (had to kill seals quickly) so gaps are problematic because
whole sequence of events not available (length of gaps also important)
o Also, people filming had motive to show something potentially misleading = selective filming = bias
o Not just selective filming but also selective editing  changes in format need to be explained to
the judge
Bottom line: Just because it’s video evidence doesn’t mean will always be the best type of evidence or that
it will even be admissible
R. v. Kinkead
Nothing to do with angles or authentication
This case exemplifies the fact that even if there are no issues with authentication, whether probative or not
etc, if evidence is simply too prejudicial and will cause jury to jump to conclusions and convict, then not
admissible  good example of balancing probative v prejudicial
Want to show the close ups to show the extra/excessive brutality on one of the victims in comparison to the
other = goes to the motive (brutality also needs to be established for a first degree murder)  probative value
is present
Position of counsel can impact whether something is more probative or prejudicial
 if there is a less prejudicial way of presenting evidence, judge might go with it (defense agreeing to admit
certain evidence, Crown doesn’t need to bring in a life-size picture of the victim)
 sometimes may still need to bring in the extra evidence though
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Documents
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most common form of real evidence
authenticate by calling writer, witness/knower of writing, experts, compare w/ known writing
some statutory rules for official/gov documents:
o ancient document rule: 30+ yrs & no ev of fraud assumed to be authentic
o reply letter rule: letter signed by x presumed to be authentic if in response to previous letter
o best evidence rule: show original if possible
Judicial Notice
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You don’t ever want to be in a position where you have a fact but have no evidence to back it up; if you’re in that
situation, the only thing that may be able to save you is judicial notice
o judge assumes facts based on general common knowledge, so need not be proved in court
o if judge thinks the statement is so over-powering that evidence unnecessary, will agree to take judicial
notice but this is very dangerous because things change
judicial notice should not be a default  it’s a very risky last resort
might also be fundamentally unfair to expect one side to lead evidence regarding some fact
R. v. Daley
Captures judicial notice test (para 16)
1. so notorious/general accepted so as not to be the subject of debate among reasonable persons or
2. capable of immediate and accurate demonstration by resort to readily available resources of indisputable
accuracy
Extrinsic Misconduct Evidence: Bad Character of the Accused
Character evidence of accused admissible as directly relevant to material issue or as evidence of disposition
(propensity)
Motive evidence usually admissible unless evidence of motive arises from discreditable conduct  has to be
gauged/not automatically admissible (R v Johnson 2010)
Common law assumes that character evidence is predictive of behaviour which is governed by personality
traits  however empirical evidence has rejected this theory  behaviour largely determined by situational
factors that cannot be easily predicted
General Inadmissibility
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Presumptively Inadmissible because bad character evidence engages two types of prejudice:
o Moral: trier of fact will wrongfully convict the accused simply to condemn for prior bad acts/being a bad
guy
o Reasoning prejudice: trier of fact will become distracted by the similar bad act evidence and accord it more
weight than it merits
Exceptions (R v Handy 2002)
(1) accused puts own character in issue  hardest evidence to lead; there’s some rules involved with leading
character evidence:
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character witnesses cannot talk about specific good things person did (can only talk about general good
characteristics)
 only person who can talk about specifics is the accused themselves
 bottom line: if accused brings up own good character, they open the door for Crown to bring up bad
character evidence (previously inadmissible)
(2) accused leads propensity evidence for 3rd party
(3) Similar fact evidence
 Must convince trial judge on BOP that probative value of the evidence in relation to a particular issue
outweighs its potential prejudice and thereby justifies its reception
What Crown can do, depends on what the Accused/defense does first  so if get specific, then Crown can get specific
with their rebuttals
Seaboyer doctrine  defense can lead more evidence than Crown would generally be able to
R. v. Cuadra
 If want to get general bad character evidence in, first step is to show that it has probative value to some
other issue (such as motive for example)
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Example of circumstantial evidence  didn’t see the guy stabbing the victim, but saw the accused holding
the knife right after the incident (and the victim on the ground bleeding) = inference that accused did the
stabbing
Also brings in general bad character evidence  this guy has been violent towards others before; the
probative value of it is the fact that witness lied at the preliminary hearing because he was scared of the
accused (“I’ve seen what he’s capable of”)
o usually, inconsistency in re-telling story goes credibility (can this witness be trusted?)
if allow evidence, need to give limiting instruction on how to use the evidence
Bottom line: Can use general bad character evidence even though prejudicial, if it has probative value to
another issue and pro > pre
Intro to similar fact evidence (SFE)
1. Habit – neutral, so the threshold for bringing this evidence in is lower than for the next two
2. SFE – multiple witnesses to state that same thing has been done by accused before
 specific propensity (brought in to bolster credibility)
 bringing in bad acts, very complicated (may dispute each one = mini trials within trials), = highly prejudicial
 at what point does it go from general propensity (inadmissible) to specific propensity (can be admissible)
3. SFE – multiple crime scene analysis
 Just like before, evidence that is overly prejudicial will most likely be inadmissible (unless probative
outweighs) whereas evidence that simply points to habits is highly probative and will be admitted
 Unless the proposed evidence (which does not discredit the accused) triggers application of some other
exclusionary rule of evidence = admissible
o If other conduct is sufficiently discreditable that it may prejudice TOF against accused, similar evidence
rule applies and probative value must outweigh prejudicial effect before it will be admitted (R v B(L)
1997)
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Probative value cannot be assessed in the abstract  similar fact evidence introduced so that it may
advance/refute a live issue (R v Handy 2002)
Evidence of Habit
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Doesn’t require the high threshold that’s required for the other two types because no prejudicial evidence coming
in against the accused
o Only threshold: MUST NOT BE SPECULATIVE
o Need some reasonable evidence/foundation that the accused had that specific habit (“I think I’ve seen x do
y a couple of times…” = not good enough)
o Exemplified in Watson
Did something so more likely to do it again  not the best kind of evidence but sometimes can come in as
circumstantial evidence
o Makes the conclusion that someone acted in a particular way more likely than it would be without evidence
of habit (R v Watson 1996 always carried the gun)
courts favour it to evidence of traits of character  less potential for prejudice
reject this type of evidence only if habit is not sufficiently regular/uniform or if circumstances not similar enough
o Person always, invariably acted in certain way before (occasionally acting a certain way = not enough)
(Belknap v Meakes 1989)
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Difference between character and habit:
o Character: generalised description of person’s disposition/disposition in respect to general trait
o Habit: more specific; one’s regular response to a repeated situation with a specific type of conduct; cannot
be speculative  must be very regular act/ there must be enough instances to permit the finding of habit
(Devgan 2005)
Basically: ONE BRINGS IN BAD CHARACTER EVIDENCE (and is thus automatically prejudicial) AND THE OTHER DOESN’T
o A habit is usually considered neutral unless the habit is a bad one i.e. being a crack addict  in that case,
evidence of the habit needs to be weighed and pro > pre for admissibility
o If the evidence is about crimes committed, repeatedly, then it’s no longer about habits, it’s about similar
fact evidence found in different crimes
Mcfadden – accused’s prior criminal history can be brought in ( s12)
Johnson v Bugera 1999
 in civil cases: start with proposition that all relevant evidence is admissible  if tangentially relevant but
would waste too much time or highly prejudicial but marginally probative = inadmissible
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balance of probabilities test (Handy) governing the admissibility of similar fact evidence does not apply to
unknown third party suspect evidence proffered by the accused  use Seaboyer test instead (prejudicial
substantially outweighs probative to be inadmissible)
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substantial prejudice does not require a higher threshold; it simply weighs heavier in the balance.
Character Evidence
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can be directly relevant to material issue or evidence of disposition (propensity)
don’t want to allow general bad character evidence usually, but does that change when done something
specific and similar before?  does that override the prejudice? Yes.
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Similar Fact Evidence
Brought in to support
1. credibility of witness/victim (by bringing in other witnesses)  Handy
2. issue of identity (accused did all the related crimes)  Grant
Example from class:
 person is on trial for one thing (coach assaulting baseball player with bat) and numerous incidents of prior
similar incidents brought up to support credibility of victim and show that they are not simply making it up
 At some point, coincidence is so improbable between fact patterns that witness/victim could not have been
making it up
 jury is asked to infer from degree of distinctiveness/uniqueness that exists between crime committed and similar
act that accused is the very person who committed the crime
o inference is possible only if high degree of similarity between acts makes likelihood of coincidence highly
improbable (Arp 1998)
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Has to be beyond the possibility that the general incident could have happened coincidentally
o The more specific and similar the facts become, the higher the improbability of coincidence  two or
more people who don’t know each other, in different parts of the city or country making up the exact
same story? = unlikely to be made up
Crown arguing that accused has a Specific Propensity to do a certain thing  Crown wants to bring in the
similar incidents to prove that the current incident is part of a bigger pattern; this person is prone to doing this
and this incident is not isolated  helps to support the credibility of victim/witness
 High admissibility threshold
 Based on SIMILARITY
R v Handy 2002

General propensity inadmissible but once it crosses over to specific propensity, crosses the threshold needed for
similar fact evidence and becomes admissible
 Different degrees of similarity are sufficient for relevancy of similar fact evidence (SFE) – depends on the issue and
the inference (Crown must identify live issue to which evidence relates)
 as propensity evidence gets more specific, it becomes prob>prej. Accused is “exact type of person.”
 Need to pay close attention to similarities in character, proximity in time, and frequency of occurrence
 Prejudice can be
o moral prejudice  inflammatory (worse)
o reasoning prejudice  (wasting time, # of witnesses, amount & complexity of evidence)
 6 factors considering similarities & dissimilarities between facts charged and SFE:
1. proximity in time
 huge gap in time problematic because people change
2. similarity of detail
 actus reus does not have to be identical (hitting in head v hitting shoulder); looking at the similarity of
the general narrative/surrounding events
 do the similarities speak to the general or specific propensities
 either highly unique feature or less similar but happened many times (2 and 3 combined)
3. # of occurrences
 important in a limited context; helps relax the similarity threshold with an increased number of
occurrences
(4) surrounding circumstances
(5) distinctive unifying features
(6) intervening events (collusion?)
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potential for information sharing
When evidence is overwhelmingly similar, the theory that emerges is that the accused has a specific
propensity to do something
o the only thing that can save a defense in a situation like that is evidence of collusion
(information sharing)
 others simply hearing the story (and adding facts etc) may be enough to help accused out
 even if they all experienced the same thing, if story sharing occurred = evidence (from each person)
now potentially tainted
 The fact that access to info could have happened goes to the weight jury gives to the evidence
o But can it ever go to admissibility? (not just weight?)  yes, when collusion occurs
 If defense raises an air of reality to collusion (witness changes their story due to hearing the stories of
others) Crown must rebut it on balance of probabilities  must show that SFE is not the product of
collusion
o This rarely arises btw
Approach taken in Handy applies to admissibility of all character evidence not just SFE
Can show a pattern from simply 2 instances
Bottom line: propensity evidence is presumptively inadmissible unless specific (and not just general) disposition; and
test for admissibility of SFE requires assessing probative value against possibility of prejudice
Look at conduct involved and if it’s worse/less worse than what’s being alleged at trial  if similar facts worse, increases
the prejudice
Analysing significance of similarities and their specificity is the heart of it
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Also brought in when Issue of identity: evidence coming from crime scenes (not from witnesses)
o Series of events that occurred at multiple crime scenes uncannily similar  much more likely that they were
committed by the same person than by multiple people doing the exact same thing
o In this way, you’re using evidence from the actual scene and what happened at it to prove identity
Requires a high degree of similarity between the acts which may consist of unique trademark or signature on a
series of significant similarities  "Zorro" signature = unique feature
o Cogency increases as the fact situation moves further to the specific end of the spectrum of human
behaviour
Can be very helpful to accused because if all crimes committed by same person but the accused could not have
committed one or more of them, could not have been the person who committed the crimes
Grant sets out very high standards for Crown for entering this kind of evidence
R. v. Grant (2015)
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proving identity of accused is essential and accused has right to “challenge the Crown’s case and lead evidence to
raise a reasonable doubt about whether the accused committed the crime”
o However, right is not without limits  cannot introduce evidence that would result in trials within trials,
time wasting etc
 two different ways to bring up 3rd party suspects  pointing finger at another known or unknown person
 whether 3rd party is known or unknown makes a difference regarding which test is used to admit evidence
o known: sufficient connection/nexus between 3rd party and crime; can sometimes run propensity evidence
(my boss has been involved in other workplaces where money went missing)
o unknown: sufficient connection/similarities between crime charged and another crime (accused could not
have committed)
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basically, if the assumption is that the same person committed multiple crimes, and accused can
show that those crimes are sufficiently similar AND that they couldn’t have committed at least one
of the other crimes, then can’t have committed the current crime on trial for, either
BUT pointing fingers at someone else carries prejudice even though raised by Defense  might cause jury to
irrationally acquit  not immediately admissible
The trial judge need only conclude that similar acts committed by same person and that there is some evidence
linking that person to similar acts  probative value of such evidence only arises if can establish a sufficient nexus
between person being pointed to and the crime
o However, probative value does not need to be so great that it is virtually conclusive of guilt (Handy)
o Once this threshold is met, the evidence will be admissible unless its prej > prob (substantially outweighs)
o It’s up to trier of fact to decide whether similar acts likely to have been committed by accused (an accused’s
involvement in each act) = determines innocence/guilt
air of reality test (Cinous) and the admissibility test (Seaboyer) = two distinct tests
o Don’t have to meet the same standard as the Crown does  Crown has to show that more likely than not,
done by same person, on a BOP
o For Defense  need to show some strong/compelling similarities between the crimes
 Para 57: marked similarities not enough for Crown but okay for defense
Post Offence Conduct:
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“…commonly admitted to show that an accused person has acted in a manner which, based on human
experience and logic, is consistent with the conduct of a guilty person and inconsistent with the conduct of
an innocent person.” (Peavoy)
Evidence that arises after the alleged conduct occurred  may provide evidence about whether an
accused did or didn’t do the offense
Simple form of evidence sometimes linked to wrongful convictions
Contains a few unique features that lead courts into trouble
Based on logical assumptions on how a person would have acted had they committed the offense and
didn’t want to get caught
o Attempts to evade detection or avoid successful conviction
o Flight from the crime scene for example; or destroying/hiding the evidence ; or
threatening/intimidation of witnesses
Acting as a guilty person may be an indication of guilt BUT IT ALSO MAY NOT BE
o People may run away from scene for many reasons including due to innocence
o Other inferences that can be drawn and have nothing to do with guilt
o Also, potential to be over-used by TOF
o Pointing to post offence conduct that’s merely speculative (someone not reacting a
certain/expected way = speculating that they did it/how a guilty person acts)
Before White case, law was all over the place regarding this topic
White v. The Queen
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Decided that it’s just another form of circumstantial evidence  act(s) subject to multiple interpretations which
must be weighed by jury
Recognised problematic  suggestions for how to deal with this evidence in a useful/fair way:
o Judge should provide limiting instruction: may be other explanations for the behaviour (panic) and to not
uniquely focus on it because just one piece of evidence
o Also, make sure this evidence is not speculative otherwise should not be led
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Where there are two potential explanations for why an accused did what they did, should go to the jury to decide
Also, no special reasonable doubt standard  consistent with Morin and all other recent authorities
probative value where accused’s conduct may be explained by consciousness of guilt regarding some other offences
and accused admits to committing other offenses but not the one(s) at trial (issue of identity)
o Admitted to committing robbery and violating probation orders and gave that as reason for fleeing – denied
that they murdered victim
But where identity is not an issue, POC evidence will have no probative value for concluding degree/level of
culpability
 fleeing from scene evidence will not help TOF decide if murder or manslaughter since accused is equally likely to
flee from manslaughter or from murder
o that “extra evidence” that accused fled, doesn’t tell the jury anything more but highly prejudicial
o if concealment disproportionate to what accused says they did, POC evidence has probative value
POC (post offense conduct) evidence doesn’t have to be conclusive, just has to be reasonable
Examples of POC: flight from scene of crime or jurisdiction in which crime committed, attempting to resist arrest, failure
to appear at trial, acts of concealment (lying, assuming false name, changing appearance, hiding/disposing of evidence)
R. v. Peavoy
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POC evidence may be relevant to one or more facts at issue but it must be relevant to a live issue and thus have
probative value
Trying to cover up that there was an altercation and that he was involved
Admits he was there and admits that he did the AR but raises two defenses (TJ raises 3rd):
1. can’t prove MR (intent to kill) – intoxicated
2. Self-defense
3. Trial judge raises defense of provocation even though Defense Counsel asked not to (TJ has duty to present all
relevant defenses for which air of reality exists)
As a general measure, the act of covering up evidence not as helpful because just as likely to cover up after a
manslaughter as after a murder  so useless in that way
But did have probative value in 2 other respects
1. rebut self-defence  can tell us whether had any culpability or not; when use self-defence you’re saying
that you were justified in doing what you did … so then why did you try to hide that you did that? = has
probative value in this case because hints at guilt (obviously a person can still cover up even if acted in selfdefense)
2. rebut intoxication defense  if covering up evidence after a crime, shows a certain level of cognitive
activity and control that’s inconsistent with the defense of intoxication = mental awareness for clean up
shows mental awareness of trying to cover up which becomes relevant to guilt
3. rebutting identity  if you think/know you didn’t do it, why were you acting in a way that a person who did
do it would act?
Can’t use this evidence in a way to decide whether guilty of murder or manslaughter because just as likely to
cover up evidence after both
o But in situation of intoxication  shows some cognitive capacity so can be useful for the concept of
intention necessary in murder
Covering up can be useful for some issues but not others
R. v. S.B.C.
 There is no principled reason to not allow post offense conduct that is consistent with innocence
 In fact, Seaboyer says we should be able to get in more info on the defense side so this “rule” is
inconsistent with the law
 It’s just one piece of circumstantial evidence that TOF should be able to have
Limitations:
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1. There is no obligation to assist the police  Crown can’t point to failure to do so and use it against the
accused
2. Evidence of prior consistent statements have no probative value and therefore inadmissible
3. Declarations of innocence generally not sufficient probative value because people are considered
innocent anyway until proven guilty
4. Accused who is cooperative/willing to help police = conduct consistent with an innocent person but
agreeing to take lie detectors doesn’t count because not admissible in court anyway (person has to be
vulnerable and still agree)
 Showing that person was blindsided/shocked at their arrest but cooperated anyway is pretty strong
probative evidence though (later we will see that agreeing to take the stand is what’s needed now)
Basically, agreeing to do anything that won’t prejudice you/won’t hurt you isn’t probative because doesn’t really help
to prove anything
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Regarding expert evidence: psychiatric evidence showing that accused unlikely to have committed crime alleged
because of accused’s mental makeup = generally inadmissible
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however, if crime alleged is one committed by a person who is part of a group possessing distinct and identifiable
behaviourial characteristics and accused can bring evidence to show that they do not belong to that group =
admissible
White #2
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Responsible for manslaughter
1. This was an execution – intentional killing (Crown’s version)
2. Grappling during which shot went off (accused’s explanation) – didn’t intend to pull the trigger
Accused takes off and throws gun away  Crown used this as evidence of intent
o Technically shouldn’t have probative value because useless when manslaughter/murder situation
o But here, probative because immediate flight  no hesitation is more consistent with a person who knows
they’re going to shoot someone
 Can react quickly because anticipated it; had it been accidental, would have hesitated first out of
shock, maybe thought about it, panicked, then ran
Splitting flight into immediate and hesitated  complicates law of evidence so much
Seems speculative though  person might run away due to the sheer shock of it all
Court disagrees: not the strongest evidence but enough logic to have at least some probative value
Is this stuff only for the Crown to lead? Used to be that way
 what if acted consistently with how we expect an innocent person to act? Usually courts would not accept
Bottom line: POC is legal term of art and only embraces conduct that is probative of guilt; by nature,
circumstantial evidence
Bad Character of the Witness
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Very difficult to get into bad character evidence when it comes to the accused  anything that makes
accused look generally bad usually inadmissible (there’s exceptions)
Do we have similar restrictions for witnesses?
Credibility is a big issue with witnesses  can undermine witnesses by attacking their credibility (lying,
leaving things out etc)
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Attacking credibility of witnesses
o Bias
o Interest in outcome of the case (business arrangement or animus with one side or the other,
custody dispute etc)
o Basic logic of their evidence and the lack of it
o Inconsistencies in accounts – changing stories/facts
o Demeanour on the stand (trial judges have greater advantage than appeal judges because they
physically see the person making statements, their body language etc)
o Bad character past – broken the law or engaged in misconduct (are they more or less likely to be
truthful in a court of law)
Canada Evidence Act (CEA), Section 12
12. (1) A witness may be questioned as to whether the witness has been convicted of any offence, excluding any
offence designated as a contravention under the Contraventions Act, but including such an offence where the
conviction was entered after a trial on an indictment.
 one factor relevant to credibility is if someone has a criminal record (has to have been convicted, something
serious etc); taken into account when looking at testimony to decide if it’s true
 Criminal record can be put to a witness and admit/deny it
 For general witnesses can go through painstaking detail and get into their general bad character –
BUT NOT FOR THE ACCUSED WITNESS
The big question is, could s 12 apply to the accused? They’re also a witness, technically, if they choose to take
the stand and testify
 Two competing policy issues
1. Statute is clear and don’t want a distorted picture
2. But what about the general rule of keeping bad character evidence out so as not to prejudice the jury against
the accused?
 what’s said in Corbett and applied in McFayden: discretion is read into s 12
 Does have relevance to credibility, so as long as jury given instructions, will follow them, and should be admitted
 BUT Juries may be more likely to use it for general propensity reasons
o judge has important discretion to make regarding how much of the record is put to the accused
o this is termed the Corbett Hearing – some parts of record not probative enough or too prejudicial so
knocked off
o if record is coming in, only coming in for a very limited purpose which is the credibility of the testimony of
the (accused) witness)
o use the guiding rules in McFayden to decide whether certain parts of record admitted or not
 for Crown witness, whole record is brought in because liberty not at stake; for accused though, don’t want to
prejudice their credibility (so only some of the record is brought in)
R v McFayden 2002
 In deciding whether previous criminal record should be admitted or not, judge should keep in mind:
o Nature of previous conviction/offence  if crime of dishonesty, then much more probative to
credibility
o Remoteness of the conviction to the present charge  if more recent, more likely to be
probative
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o Whether past conviction is for a similar offence  greater risk for prejudice if it is (similarity
ways against it being admissible = counter-intuitive, but remember, bringing this evidence in for
the purposes of CREDIBILITY not as propensity evidence)
o Nature of the defense attack on Crown witnesses  if Crown witnesses’ criminal record(s)
brought in, then accused needs theirs brought in as well
 Unless you’re attempting to “even the score” because the complainant’s criminal record
brought in, usually pre > pro and inadmissible
How some evidence not brought in/slips through cracks: May not be similar enough to be brought in as SFE
but too similar to be brought in through McFayden test
R. v. Cullen
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acquittals of witness not admissible (exception to the “all/full criminal records of witnesses general admissible”)
discreditable conduct w/ criminal discharge for witnesses is ok
Perjury  lying under oath/trying to mislead the court
 So what do you do if have perjury and frauds
 And at what point does the justice system deny someone from participating in the search for truth
because of their past?
Jailhouse Informant  someone in prison claiming that accused gave them a confession
 Get “currency”/power from the Crown by making a deal with Crown  will give confession if
charges dropped
 But how/why so many confessions coming out?  turns out, people reading news reports,
particulars, sending someone to listen in on bail hearings etc = became a whole industry
ADMISSIBILITY IS A BIG THING THIS SEMESTER – not even hearing the evidence is a problem
R. v. Murrin
 Terrible child killer
 Dangers of jailhouse informants and how unreliable they are very well known at this time
 Application made in this case to exclude evidence of jailhouse informant
o Reliability a feature of whether evidence admissibility
o But this application was rejected  judge stated that reliability and credibility wasn’t his call to
make
 Unreliable evidence does not make trial unfair  matter of weight for jury to decide
 Presumptively admissible (because a form of eyewitness testimony)
 This is important because many crimes occur in criminal sub-culture  should be able to include this
evidence from these types of witnesses
 Of course, issue of juries simply convicting because prejudice so high
The Vetrovec Witness
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This is not a person who has credibility issues  this is part of litigation; not for this Vetrovec instruction
This person has inherent, severe credibility issues before they even take the stand
Sometimes can come from one really compelling issue
Who can be a VW?
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o Jailhouse informants necessarily meet definition of Vetrovec Witness
o Someone with a recent perjury conviction could be sufficient
o Person in serious jeopardy/already charged for offense, got that dropped, and now a witness (Miracle
Deal) admitting to be lesser player (massive incentive to pin it on someone else)
o Most often: combo of things that come together
 Criminal record + criminal lifestyle + severely inconsistent statements + self-interest/bias
Lack of corroboration = give this evidence little or no weight
R v Vetrovec 1982
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Took british rule regarding this and tailored it to Canadian law
No special category for accomplices  should be treated like any other witness
o Trial judge should consider all the factors that might impair witness’ credibility and decide on that basis if
special instruction needed
Something in the nature of confirmatory evidence should be found before finder of fact relies on evidence of
accomplice witness
Because such a problematic witness, but admissible, have to give a Special instruction/Warning/Particular
Caution to the jury  used to limit prejudicial effect
o
No need to instruct juries to apply technical definition of “corroboration”
R v Khela 2009
 Vetrovec Warning: alerts juries to the danger of relying on unsupported evidence of “unsavoury” witnesses and to
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explain reasons for special scrutiny of their testimony
Principled Framework to assist judges in construction of Vetrovec Warning:
1. focus jury attention on unreliable evidence requiring special scrutiny
 take VW and their evidence out and give special rules to them
2. Explain why specific evidence is subject to special scrutiny/why unreliable
 why slotted as VW/remind jury what got witness into Vetrovec category and why treated differently
3. jury is entitled to convict based on the evidence alone, given by the VW BUT judge must caution jury on dangers
of wrongful convictions based on unconfirmed evidence
4. Encourage jury to look for evidence from other sources that will corroborates the VW’s story to show honesty
of an otherwise untrustworthy witness
Factors which may point to untrustworthiness: involved in crime, motive to lie, unexplained delay, inconsistent
statements, perjury
Girlfriends are supposed to be witnesses that corroborate evidence of VW  but their evidence potentially tainted
because of their relationship
Example:
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Break in, elderly person found dead, thumbprint in house leads to VW
VW says he did break into the house but someone else was there who did the killing
Get them to tell the story of ehat happened and then look at the evidence that’s backed up by corroborative
evidence
Definition of corroborative evidence difficult to state:
o One position: Compare VW evidence to other evidence as a whole and see if you’re convinced  pretty
broad; not the best definition
o The other position: definition is very narrow  has to specifically back up that the Accused was the
perpetrator
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o
o
o
o
Eyewitness says saw two guys going in, one looked like the accused
A thumbprint from the accused as well
Accused left something behind that leads back to them
This is important because VW could have done the crime himself and simply slotted accused in at
the end
 This second position rejected in Vetrovec and Khela: simply needs to back up some important part of VW’s story
 More flexible definition: doesn’t have to DIRECTLY back up that the accused did it however PERIPHERAL STUFF
is not enough (went to school with accused bla bla)
 Btw a lot of the time if you have a VW, want judge alone trial
o Judges will look at corroborative evidence and say it’s not enough, need more (whereas juries tend to
convict on such evidence)
1. Evidence has to go to material point  not sufficient if corroborate evidence backs up a peripheral part of the
story
2. Evidence has to give confidence of accused being the perpetrator  because don’t need to have direct
evidence this is why directly implicating accused evidence is so good (doesn’t have to directly implicate, but
great if it does); the other stuff has to give confidence for something not directly corroborated
3. Evidence has to be independent  if evidence potentially tainted by VW then pretty much useless (VW having
contact with OTHER witnesses who are supposed to give corroborative evidence) (Khela)
 rarely have direct evidence of this, so something you leave with jury
Have to look at evidence to see if it backs up material/important part of VW’s story and that evidence has to be
independent
Related problem to this: no quality control threshold that evidence has to meet
 as a result, one VW can back up another
 so simple jury instruction can not only be problematic but would lead to direct conviction probably (ironic because
supposed to harder to convict on VW evidence)
Nikos would add more to the jury charge:
1. Confidence is gained though corroboration  evidence should be material and independent (and should give
jurors confidence about the disputed part of the evidence)
2. Proportionality  The worse a VW is, the greater quality and the more types of other evidence needed to bring
them up  Nikos would add this in
3. Exercise caution
Identification Evidence:
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A type of direct evidence or an important type of circumstantial evidence
Credibility not an issue in stranger-identification cases because usually witness doesn’t know the accused or have
anything against them
Attack reliability instead (#1 cause of wrongful conviction)
o Easier to identify someone you know because familiarity helps even it instances of glimpses
o When identifying a stranger not only harder to remember but also harder to articulate what/who you saw
o Psych: reliability of eyewitness ID is worse in stressful situations than usually because of stress and because
things happen quickly
o Memory SO easily tainted also
Can’t exclude this evidence but have to be aware of its limitations
Pointing at someone in trial/court room virtually of no value/means nothing
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R. v. Gonsalves
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Critical that the principle of independence is observed  cop should have recorded everything, there should have
been a double-blind procedure etc
If evidence tainted by inappropriate procedures not automatically inadmissible goes to weight
where the eyewitness provides an initial description of a feature of the suspect unpossessed by the accused, the
general concern over eyewitness testimony is compounded
Where a witness does not notice a distinctive feature of the suspect, i.e. a cleft chin, but does not say in the
description to the police it did not exist, there is not an exculpatory dissimilarity
Inherently frail form of evidence that we will not exclude but will have to limit its use
o Instruction: people have been wrongfully convicted based on evidence like this so be very careful
o Consider circumstances during the identification (how long of a look? obstructions? Stressful
circumstances?)
o
o
Official statement given to cops while memory fresh, not as likely to be tainted = prior identification evidence
 Prior statements usually inadmissible because want people’s in-court testimony
 Exception here: can bring it in and is compared to contemporaneous description
Because articulation of what’s inside your head is not easy to do always, use photo lineup  allows witness to identify
accused by giving them options; this is also an exception that is admissible
 There can be problems with photo line-ups because evidence getting tainted/witness under the assumption
that they have to pick one picture and may pick the “closest” looking perp  THAT’S A PROBLEM because it
may not even be the perp
So to make the photo lineup procedure a bit less tainted:
1. Pick a cop not directly implicated in investigation to show the pictures
2. Show pictures one at a time and don’t tell witness how many pictures there are in the line-up
R. v. Hay
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New issues raised by this case
Issue: who was the second perp
Corroborative evidence in this case not strong
Eyewitness claiming Hay was the second shooter
o her evidence particularly frail because ID’s perp as someone who had “80% likeness” to Hay
o doesn’t ID Hay in second photo lineup
o conflicting evidence – seems to be mixing up the two perps
Crown explains her two different identifications by saying that the accused changed appearance in the
meantime (got rid of his dreadlocks) want to get the original appearance and original witness statement
o Crown is also trying to submit this as post-offense conduct
Would the jury have been allowed to convict on her testimony alone?
o Before, if had flawed ID, would go to jury to decide  but this case seemed to have changed the law;
no longer just a weight issue, but an admissibility issue
o Can’t convict on her evidence alone = TOO FRAIL  this is different from Vetrovec decision where
they said can convict on evidence alone (even the crappiest evidence
o Also, her evidence alone would have been inadmissible
o But the corroborative evidence bolstered her testimony a bit (hair clippings found in his apartment)
 the problem with this evidence is that no expert tested the clippings to ascertain that they were
hair clippings and not beard clippings (at trial)
 and once trial over, evidentiary record is closed, can’t now expand it when go to appeal
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Rule: presumption that can’t present new evidence on appeal BUT sometimes new/fresh evidence arises
after trial so there has to be an exception to this rule (Palmer Test)
Four-part test for admitting fresh evidence (paragraph 63)
1. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.
 Has to go to critical issue and significantly bear on it
2. The evidence must be credible in the sense that it is reasonably capable of belief, and
 There has to be inherent credibility or reliability
 Is there corroboration for the new version of events
3. It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be
expected to have affected the result
 If new evidence brought in, is there likelihood that would have caused the case to go the other way at
trial/strong likelihood would have changed the verdict
4. The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial
provided that this general principle will not be applied as strictly in a criminal case as in civil cases
 Law asks: was Counsel aware/should have been aware of this evidence and if yes, should not
be included now
 There’s degrees of this though  where Counsel made strategic decision court will be much
stricter
Due Diligence not a requirement but if lack of due diligence, the other 3 factors get amped up
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If lack of due diligence and evidence barely meets standard (that fresh evidence would have changed the result) then
don’t let this new evidence in
The main reason behind the fresh evidence test seems to be: is there a serious risk of wrongful conviction if we don’t
let this new evidence in
Bottom line: the ID evidence maybe so crappy that at some point, no longer can convict on that crappy ID
evidence alone
Opinion Evidence
Experts are simply necessary in many cases
1. There to ASSIST with the case (not to decide it)
2. There to help draw inferences we would ordinarily not be able to draw (what the evidence actually points to)
 inferences may be highly scientific/technical or may be behavioural

Expert evidence sometimes called opinion evidence because expert takes the facts/evidence and forms an opinion
on how the facts/evidence should be interpreted
Dangers of admitting expert evidence:
 TOF will simply follow whatever expert says instead of using opinion as a piece of evidence to be evaluated
o can be wrong/mistaken but because of credibility, believed and TOF accepts it and goes with it (susceptible
to error with massive implications)
o usurping role of TOF
 EE resistant to effective cross-examination by counsel who are not experts
27
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Risk of admitting junk science
Risk of trial becoming simply a “contest of experts”
Inordinate expenditure of time and money
Risk of confusing the jury even more
Presumptively inadmissible  party wanting to bring it in must establish admissibility on BOP
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Experts weren’t there, didn’t see what happens
But in 1980s, expert evidence becoming more admissible  flaws would go to weight
White Burgess case: SCC put greater emphasis on admissibility because of the increased awareness of
the dangers and the serious repercussions when inadequate/flawed/wrong evidence admitted
Admissibility falls into 3 categories:
1. Statutory
2. Common law requirements (pre-conditions that must be met)
3. Broader balancing a judge can do (pro/pre)
1. Statutory Rules
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First place you look/start  know the statutory requirements
These are in addition to the CL requirements which are usually at the focus of a hearing
Often relate to notice  Crown has to disclose at least 30 days before trial (but should do it way earlier)
o Also, one of the few areas where Defense has to make disclosure (re notice of own expert)
o main reason why expert evidence excluded  party forgets to give notice before the 30 day mark
Appointing court experts: difference between appointing the best expert v the best witness  becomes a matter of
which expert to believe/which expert is more convincing (ends up being a question of credibility rather than facts
The solution to have the court simply appoint an expert is not favoured in Canada
S 657.3 of CC  provides for exchange of expert reports; other party has to be aware of the fact that part intends
to introduce expert witness and to give name, area of expertise, qualifications etc as well as copy of report/
summary of anticipated opinion
Also, statutory limits on how many experts can be called
2. Common Knowledge
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Notions, guesses, conjectures not permitted however generally understood that it’s impossible to speak
to facts only
o Person of ordinary intelligence may be permitted to give evidence of their opinion upon a
matter which they have personal knowledge; absence of justification for utterly excluding
opinion testimony in the form of reasoned conclusions
o Also, anything that is logically probative is receivable unless excluded by a rule/principle of
law
Expert opinion ultimately admitted because it will be helpful to the jury’s decision-making
Testimonial qualifications of expert must be established before TOF (same as for lay-witnesses)
Calling an expert in on a new area requires SUPER admissibility standards  significantly more cautious
o Somebody has to be first so you can’t never ever admit evidence from a new type of
research/area
o But still have to be very careful
o Test in R v J(J-L) 2000
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R v J (J-L) 2000  novel area
 Case by case evaluation is necessary for novel science evidence because so much can go wrong
Some factors to help evaluate new science:
1. Whether theory/technique has/can been tested
2. Whether subjected to peer review and publication
3. Known/potential rate of error or the existence of standards
4. Whether theory/technique has been generally accepted

Benefits > costs
o relevance, reliability and necessity > consumption of time, prejudice and confusion
General Rules for Experts
R v Graat 1982
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Can let people provide opinions that every day people are capable of providing so long as not speculative
Non-expert witnesses cannot give opinion evidence on legal issues, but they can definitely give opinion evidence on
matters of fact  don’t need any special qualifications to have an opinion on how drunk/sober someone is
Thus, even if there a police officers testifying as witnesses, if they are merely stating their opinions and not acting in
the role of experts, no reason to prefer their evidence over the opinion of other witnesses
TOF decides what weight to give what evidence
Non-expert witnesses can give opinions on (non-exhaustive list):
o ID of handwriting, persons, things
o Apparent age
o Bodily plight/condition of a person
o Emotional state of a person
o Condition of things
o Estimates of speed/distance…etc
Admissibility is determined based on relevance using logic and experience and then deciding if there’s a reason to
exclude the evidence anyway, based on some clear policy/law
Tests as laid out in Mohan and J (J-L)
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Usually not talking about things that every day people can give opinions on so can’t use Graat for that stuff
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R v Mohan 1994  established area of evidence
pedophiles/sex assailants not standardized enough category such that experts can rule out non-deviant perpetrators
in the legal realm
Mandatory preconditions (have to clear “presumptively inadmissible) and balancing
This case gave the preconditions for admitting expert evidence and also gave cautionary warnings
Criteria for admission of expert evidence:
1. Relevance
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Threshold requirement
Decided by judge as matter of law
May be excluded if pre>pro, will waste time, misleading
(reliability v effect)
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2. Properly qualified expert
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3. Necessity (in assisting TOF
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4. Absence of exclusionary
rule/reason
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May be applied to exclude EE as to ultimate issue
Shown to have acquired special knowledge through
study/experience in respect of what testimony about
May come through more academic route or hands-on
experience
Issue of experts sliding into other areas that they may not
be qualified for
Limited qualification (person only an expert for 2 years for
example) will most likely be ripped apart on cross-exam
Provides info that is likely to be outside
experience/knowledge of judge or jury
ordinary people unlikely to form correct judgement if
unassisted by persons with special knowledge
instructions to jury important
May be applied to exclude EE as to ultimate issue
Nikos suggests putting this 4th factor into the second part
(developed in Abbey and then White B) and using it for
general weighing
Relevance and Qualified expert used to be the only two criteria
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Also, pro>pre + cost-benefit analysis
The closer the evidence approaches opinion on ultimate issues, the stricter the application of principle
Judge has a gatekeeper role regarding admissibility – junk science should not be allowed through but novel science
where general acceptance not yet achieved = admissible
o In other words, Frye Test rejected  no longer needs to be “accepted by whole scientific community”
R v Abbey 2009
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Judge’s role: properly control admissibility of EE, manner in which presented, and the use jury makes of it
Gives explanation of second aspect of the test regarding balancing
bring in expert on gang culture and violence to explain the significance of the teardrop tattoo
o gives court 3 reasons why someone would get this ink one of them being that tattoo is done after person
kills someone from a rival gang
has all the components of the admissibility checklist  judge still chose to exclude the evidence and accused was
acquitted! (at first; when evidence led in a different way at court of appeal, found guilty)
that one extra step after laying out the three reasons =
o risk of usurping
o falling out of his expertise
Crown wanted expert witness to basically do part of the closing remarks for Crown  problematic obvs and
unnecessary
Bottom Line:
1. Don’t go to the ultimate issue unless you have to; stay within the role of the expert (let him lay out the 3 reasons
and leave it at that)
2. You don’t want expert witness “onboard” with Crown/Defense and propping up their argument  expert is there to
help the TOF
3. FRAMEWORK
1. pre-conditions
a. Statutory
b. Relevance
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c. Expertise
d. (necessity  not clarified in Abbey but was in White)
2. Overall pro> pre balance
a. Issues raised in first part but weren’t enough to make evidence inadmissible at pre-conditions stage can
now come to the spotlight and knock out the admissibility
 bias is low or almost pushing it
 just how relevant is an issue
 tons of or limited expertise
 did it just get over the necessity requirement or was it definitely necessary
 reliability  regarding the methodology, approach etc
 form evidence presented in/how evidence led (are they usurping)
the factors looked at the most: bias, reliability, form of presentation
Checklist for admissibility
1.
2.
3.
4.
statutory provisions  have to give notice
relevance
necessity
expertise (with no obvious/overwhelming bias)
a. evidence has to be presented in a way that doesn’t usurp (look at notes under “Ultimate Issue”)
White Burgess Langille Inman v. Abbott and Haliburton Co.
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ABSENCE OF BIAS (added to qualified expert factor and to the 2nd part of the White test)
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Expert witnesses have duty to the court to give fair, objective, and non-partisan opinion evidence which overrides
parties’ individual interests in favour of interests of the court (truth-finding)
o Duty underlined by impartiality, independence, and absence of bias
o This duty and capacity/willingness addressed in “qualified expert” part of Mohan framework

Bias definition  para 32
o The acid test is whether the expert’s opinion would not change regardless of which party retained him or

her
o An expert witness who always testifies for the same side and refuses to take in new info/change viewpoints
etc
Necessity is a pretty high threshold – has to clearly be beyond average TOF because would be unable to draw these
inferences on their own – the standard is not helpfulness
o when calling a witness regarding behavioural traits could be an issue  there may be a question whether
this expert evidence needed to be brought in or not
o
o
criterion which can be attacked much easier than relevance or qualified expert
courts have said: just because inference may be difficult to draw does not mean TOF cannot do it by
themselves  keep in mind costs of bringing in expert(s)
Admissibility inquiry divided into 2 steps:
1. Proponent of evidence must establish threshold requirements of admissibility (Mohan factors)
2. Judge balances risks and benefits of admitting evidence

For expert evidence to be inadmissible, more than a simple appearance of bias is necessary
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“Anything less than clear unwillingness or inability to do so should not lead to exclusion, but be taken into
account in the overall weighing of costs and benefits of receiving the evidence.” [para 49]
Necessity
R v McIntosh 199?
Example of expert evidence being not necessary
Expert not needed to warn against frailties of eyewitness evidence, instruction to jury is sufficient
R v Perlett 2006
Another example of expert evidence being not necessary
Expert evidence relevant to credibility is admissible if testimony goes beyond the ordinary experience of trier of fact
 average person knows that people will make mistakes in situations where something happens fast even if traumatic
(… do they though…?)
These two are also an example of Seaboyer standard not being upheld
Ultimate Issue
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Rule prohibiting expert witnesses from expressing opinions on ultimate issues (the matter to be decided by TOF)
because could usurp jury’s role  but Canadian law has moved towards a more flexible approach (middle ground)
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Danger of usurping  Not a pre-condition issue but wraps up the test in general
The way the evidence is led can result in issues (more or less likely to usurp)
Two ways to lead this evidence:
o Less likely to usurp: give expert SOME direction but no facts of the case and have them generally discuss 
would give jury some info but wouldn’t tell them what to do
o Most likely to usurp  giving expert facts of case (sit in on trial even), then ask them for their conclusions
regarding the facts at hand  more helpful because can speak to the actual issues at hand BUT huge danger
of usurping jury’s role (incredibly tempting for TOF to simply go along with expert’s conclusions)
 Expert goes to the ultimate issue of the case and gives a direct, qualified, credible opinion
 Goes beyond their job and usurps role of TOF by directly speaking to ultimate issue
Middle ground: presenting the actual facts as though hypotheticals
o Expert gives their opinion first (to see where they stand, where getting ideas from etc), then “hypothetical”
facts introduced
 By giving them as hypotheticals, TOF doesn’t have one more person re-stating the facts as if they are
set in stone and that’s what happened (and then basing THEIR conclusion on those facts)
 TOF is free to come to their own conclusions and to re-examine the other evidence without bias
Going to ultimate issue is subject to important qualifications
o Certain issues where introducing expert opinion is simply not allowed
 Providing commentary on witness’ credibility
 Issue in almost every case so they’ll basically be brought into every case
 TOF brings their own unique “expertise” (aka common sense) to the case that can be tainted
if expert brought in
 Evidence has more weight if it pertains to the actual facts at hand (presented as
hypotheticals)
 However, experts can be brought in to comment on something relevant to credibility (BFF/FFB case)
 Statement validity analysis evidence is not allowed because basically goes directly to credibilty
o Treated as last resort (avoid presenting in a way that might usurp unless absolutely no choice)
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32
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Legal issues
R v Bryan 2003
No general rule excluding expert evidence in respect of ultimate issue
R. v. Llorenz
Demonstrates proper/improper uses of expert evidence
Facts are important:
 Complainant alleges sexual abuse – discloses this during visit with Dr Llorenz (who has to then contact the police)
 Called as witness in case, gives opinions regarding indicia of people who have been subject to sexual abuse
 Court says: a number of admissible points
o This evidence is admissible regarding how the allegations arose; person to whom the abuse was told to, can
be called on to explain how the disclosure occurred and got to the police  just a general overview of the
facts
o But Crown wanted to use him as expert witness
 Could use him as expert witness regarding how a person who has been subject to sexual abuse may
traditionally act/signs may show; to explain the delay in reporting and why have little relationship to
whether event occurred or not
 The problem occurred when he stated that he believed her  credibility opinion
o
Limiting instruction could have saved this though
Foundation
Abby  experts allowed to go ultimate issue because dealing with medical diagnoses
 no foundation for expert’s evidence, therefore inadmissible
experts often rely on some kind of hearsay so it’s okay to make it admissible  doesn’t mean it can’t be attacked
R v Jordan 1983
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Before any weight can be given to an expert’s opinion, facts upon which opinion is based must be found to exist
Hearsay evidence can be accepted as original evidence (from an expert) insofar as it relates to evaluation of expert’s
opinion
If a critical component is missing though, then there is a problem …
 To prove battered woman syndrome, had to prove that accused was subject to cycles of abuse over time (in order to
show/prove the different perception she may have had from others)
o Expert used information that wasn’t admitted as evidence to form his opinion
o If Abbey interpreted to mean that opinion had to be based on admitted evidence, solely, the this would be a
problem but Lavellee interprets it differently: if some evidence is missing, goes to weight  special
instruction given to jury to remind them of this
R v Lavallee 1990
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Each of the facts upon which expert opinion is based on does not have to be proven  as long as there is some
admissible evidence to establish foundation for the opinion, testimony cannot be ignored
BUT the more the opinion relies on facts not proven, the less weight the opinion can hold
33
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If comes to a point where opinion is based on mainly evidence that hasn’t been admitted, then cannot use the
expert’s opinion
There’s also some pro/pre balancing
Further teased apart:
o Evidence obtained by expert and acted upon within scope of expertise  independent proof not needed
o Evidence obtained by expert from a party to litigation about a matter directly in issue  independent proof
needed
R v Worrall 2004

If expert opinion is of the second type as described in Lavallee, then independent corroboration of the
opinion is not needed
o calling in the actual technicians as witnesses to prove the lab results on which the expert opinion is
based in unnecessary
A New Framework for Admissibility
Admissibility inquiry divided into 2 steps:
1. Proponent of evidence must establish threshold requirements of admissibility (Mohan factors)
2. Judge balances risks and benefits of admitting evidence
Witnesses

Even where evidence is recorded on camera etc, still need someone to explain it/corroborate it etc
Ability to Testify
Competence, Oaths, and Compellability of Witnesses: CEA, Sections 13-16.1, pp. 424-426
Canada Evidence Act ss 13-16.1
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Competence: relates to rules that regulate ability to testify in court (whether person is allowed to testify
or not)
o have to take oath to be considered competent witness
o going under oath has some important components
 psychological component where person understands the seriousness of not
lying/exaggerating
 subjects person to potential penalties for messing around/not providing evidence
properly
Compellability: compelling a competent but reluctant witness to testify
o Being able to force people to testify helps search for truth
Almost every person is competent and compellable  standards very low to allow someone to be a
witness
o Accused is one of few people who is competent but not compellable (can’t force accused to
testify)
Testimonial qualifications:
34
1. ability to observe
2. ability to accurately recall observation
3. ability to communicate recollection to TOF
a. intellectual ability  to understand Q’s and give intelligible A’s
b. moral responsibility  to speak the truth
Nikos says that minimal requirements for giving testimony:
1. ability to communicate
2. ability to go under oath
historically, 2 groups of people who have raised some issues regarding testifying
1. very young (children)
2. mentally ill
 but limits are very low simply because we want to hear this evidence and make any issues go to weight
instead
Children as Witnesses
Prior to 16.1 pre-screening procedure child had to understand the seriousness of the situation and to be able
to tell between truth and lie
 decided that this was too intimidating and unnecessary because not a lot gotten out of these “chat
sessions” with the judge where this would be extracted
 so 16.1 introduced
16.1 (1) A person under fourteen years of age is presumed to have the capacity to testify.
 strong presumption, and no minimum age

No oath, just simple, clear language asking witness to promise to tell the truth
o Cannot ask questions about a witness’ understanding of this question
o Can challenge whether they are able to understand and respond to questions in general (strong
presumption that they can)
o Virtually no way to attack admissibility
16. (1) If a proposed witness is a person of fourteen years of age or older whose mental capacity is challenged, the
court shall, before permitting the person to give evidence, conduct an inquiry to determine
(a) whether the person understands the nature of an oath or a solemn affirmation; and
(b) whether the person is able to communicate the evidence.
The difference between the two sections:
In s 16, nothing stating you cannot challenge an accused’s understanding about their promise to tell the
truth
 However, because that rule stated for children, implied that applies for people’s mental capacity as well
 this applies to admissibility (cannot ask about it regarding the competence part of admissibility), but can
bring it up AFTER it’s been admitted, on cross-examination
35
The bottom line: There are very few people that have witnessed something that will be prevented from
testifying; want as much evidence let in as possible
R v ID/R v DI  on the interpretation of s 16 and s 16.1
Order of Witnesses: pp. 577-580
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in civil cases, court has basically no power to call a witness or to direct further evidence to be given to
court (incomplete case results in dismissal)
however in criminal cases the court can call a witness in the interests of justice (and because liberty of
an accused is at stake)
o usually though, Defense can call a witness that the Crown is not calling (seems suspicious) 
abusive reason
o if super problematic witness that no one wants to call but testimony would be important, judge
can call the witness and both sides can cross-examine  VERY RARE
ALSO if defense has closed case then this power is limited  neither prosecution nor court can call
further witnesses unless in exceptional cases where unforeseen circumstances arise
o Cook  accused has no right to face his/her accuser and the way Crown presents their case
should be left to Crown’s discretion without court intervention (unless abuse of process)
Judicial interventions should be kept to a minimum, aimed mainly at clarifying confusing/technical points
(especially where expert is testifying)
judge also has no control over order of witnesses but rules developed:
o a witness cannot be in the court room unless already testified (prevents tainting of evidence)
o but accused cannot be kicked out of the court room (has the right to be present) so proposed
that judge should make accused testify first, then witnesses (who are waiting outside) testify
next to minimise attacks on credibility/to avoid diminishing weight of accused’s credibility
 but R v P(TL) 1996 says a judge cannot force accused to go first  up to counsel
 but the judge has the right to discuss the weight of accused’s testimony if accused
testifies last (because had the ability to hear all other witnesses speak first)  however
that should not be the only factor/reason
btw a judge may break the “rule” and order a(n expert) witness to go before another because of
scheduling issues
Direct Examination
Leading Questions: pp. 532-539
 questions which (in)/directly suggest to the witness which answers to give
 on material points cannot lead own witness (but can lead opposing party’s witness)  not allowed in
examination-in-chief but allowed in cross-examination (R v Rose 2001)
o attempts to eliminate bias in this way
o additionally, simply answering leading questions makes TOF lose a lot because witness not telling
their story in their own way
o however, if witness seems to favour cross-examiner, then leading questions must also be
restrained
 in general, prohibited but exceptions:
o introductory, formal, undisputed, peripheral matters
o for purposes of identifying persons/things
36
o
o
o
o
o
to allowing witness A to contradict statements made by witness B
where witness hostile to questioner/unwilling to give evidence
where necessary to refresh witness’ memory (TJ’s discretion)
where witness having difficulty communicating b/c of age, education, language, mental capacity
where matter is complicated and witness deserves some assistance regarding questions (TJ’s
discretion)
o may, through agreement of both sides, lead to get to the main point faster (notify judge first
though)
 this list is not exhaustive: general principle is that we want the witness’ evidence not that of
questioner  judge should keep this in mind when exercising discretion
Can’t lead a witness but can direct them to certain facts and ask them for their recollections regarding that
evidence
Refreshing a Witness’s Memory: pp. 539-548
 Trial happens months (9-10 AT LEAST) or years after the event
 Something important is missing, what can you do?
o Come back to that part of the story a couple of times – through re-telling may remember
something
o Ask permission to use slightly more leading questions that will help direct witness to the
evidence you need
o If neither of these work, can use PMR or PRR (below)  start with PMR and need to be clear
regarding which one of the two you are using (and keep them distinct)

usually, witnesses give initial statements
o Become useful when a witness forgets an important part of their evidence to refresh their
memory or to simply use that evidence instead
Present Memory Revived
 Trying to spark witness’ memory and then put aside the statement and let them testify from memory
 More frequently used
 Have to ask permission from judge to revive memory of witness (while witness is out); then bring them
in
o Ask witness to read the forgotten part to themselves then ask them if memory refreshed
o If it did, statement put aside and they testify from their memory (other side can attack this) –
CANNOT KEEP THE STATEMENT WITH THEM and the statement itself is not evidence


Should we care about what we put in front of witnesses?
o One extreme: we should not care at all, as long as it sparks, great because at the end of the day,
this evidence does not get admitted
o The other extreme: we should care we should only put stuff that might actually trigger their
memory, that the witness made themselves close after the event to avoid tainting memory
o the law takes a middle approach  contemporaneity is an important factor (when the witness
statement occurred and who wrote it down)
R v 1998  providing witness with their prior statement is generally okay prior to trial  other party
can attack this
o Police officers are always permitted to use their notes (because they have so many cases going
on at once and taking notes is compulsory for them)
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 If simply parroting their notes then there may be an objection from the other side
o Also problematic if police officers use another police officer’s notes to refresh their memory
(Mattis 1998)
 Presumption that made recollections together, or one copied the other
Past Recollection Recorded  hearsay exception
 Can’t spark memory because totally forgotten so admit the statement instead
o Different from agreed statement of facts (formal admissions that are made)
 Heavily exceptional because all the advantages of being in court are lost
o Not under oath when made those statements
o Can’t be cross-examined
o Can’t see or hear the person when giving those statements
 Very difficult test has to be met to allow this evidence
 The past statement must have been:
1. Recorded in reliable way
 Have to be very clear what the recollection was and that it came from the person
 Usually a video of the person giving their statement or writing it down alone
 Police officer writes statement and person signs it  this is already getting iffy and may
fail the test at this point
2. Recorded at a time when events fresh in mind of person (strict contemporaneity requirement)
 Freshness in relation to the event
 Freshness/contemporaneity is relative  for example almost get hit by car, write down
license plate number immediately after it happened better than writing it down 5 mins
later; but if testify about a person someone knows a few days after, can still be okay
 If weeks or months, rarely passes test because of possibility for tainting
3. Must be verified at trial attempting to be truthful when gave statement
 Attempt to bring oath in
 If witness remembers making the statement but not the contents of it, can say they recall
being truthful when made the statements
 But if a witness has no memory of making the statement, then can’t exactly say they
recall being truthful when stated it  therefore, statement cannot be brought in
4. If available, use original record
 must be interpreted strictly because not an aid, but evidence therefore has to be highly reliable as a
result
 missing one of these = test fails = VERY FRUSTRATING FOR THE COURTS
Cross-Examination: CEA, Section 10; pp. 557-571
Canada Evidence Act s 10 (Cross-Examination)
10. (1) On any trial a witness may be cross-examined as to previous statements that the witness made in
writing, or that have been reduced to writing, or recorded on audio tape or video tape or otherwise, relative to
the subject-matter of the case, without the writing being shown to the witness or the witness being
given the opportunity to listen to the audio tape or view the video tape or otherwise take
cognizance of the statements, but, if it is intended to contradict the witness, the witness’ attention
must, before the contradictory proof can be given, be called to those parts of the statement that are to
be used for the purpose of so contradicting the witness, and the judge, at any time during the trial, may
38
require the production of the writing or tape or other medium for inspection, and thereupon make such use of
it for the purposes of the trial as the judge thinks fit.

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
“legal engine invented for the discovery of truth” – Prof Wigmore on cross-examination
Safeguard that ensures accuracy and completeness of testimony
Powerful weapon of defense
Cross-examiner not confined to questions asked during examination-in-chief
However, cross-examination cannot be irrelevant, prolix, insulting, unnecessary, harassing, misrepresentative,
repetitious, overly prejudicial
Why cross-examine?
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


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To attack credibility  bias, prior inconsistent statements, contradictory
To attack reliability  decreases the weight of their evidence
Details other side hasn’t already touched on/pointed out
To bring out sympathetic factors
Questions are not evidence unless the witness agrees to the question, then becomes evidence
Evidentiary issues



Counsel given fair bit of leeway but there are evidentiary rules
Originally, putting very specific propositions with very specific facts to a witness was allowed if you had the
evidence ready to go as a foundation upon which the question is based on
But Lyttle case changed that:
R v Lyttle 2004



right to cross-examine recognised as broad right, protected under s 7 and 11d of Charter however, counsel bound
by rules of relevancy
cross-examiner can ask questions about proven facts or on issues which haven’t been proved but counsel has
good faith basis as a foundation
o this is because counsel may need to cross-examine in order to prove a currently unproven fact 
sometimes, the only way to get at evidence is through cross-examination
o counsel must adhere to requirements of good faith and professional integrity
Goof Faith Basis:
o Question may be based on information that falls short of admissibility, is incomplete or uncertain
o may pursue any hypothesis that is honestly advanced on the strength of reasonable inference, experience
or intuition
o however, cannot put suggestions that you as counsel don’t believe to be true, are putting to witness
recklessly or know that the judge will find manifestly tenuous (an out for the judge)
The flip-side, putting rrstrictions on Lyttle come up in next case:
R v McNeill 2000

Browne v Dunn Rule  trying to encourage search for truth
39
o
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Duty to cross-examine where credibility of witness is challenged by calling contradictory evidence; witness
must be given the chance to address the contradictory evidence in cross-examination while in witness
box
o Rule of fairness which prevents “ambush” of witness
Example: raising a relevant issue later on in the trial (at closing submissions for example) but not putting the issue
to the witness at the time when they were being questioned
Basically, have to give the witness to chance to tell their side of the story if something brought up by another
witness/accused
What happens if this isn’t followed/doesn’t happen/isn’t fair? (PAGE 569)
o Judge can frame it as positive factor for crown witness (credibility bonus) and negative factor (detriment)
for witness that didn’t get a chance to answer to the contradiction
o If peripheral matters, don’t worry about it  avoid issues altogether especially if never put to
1. Recall witness  put Crown witness back on stand and have defense counsel re-cross-examine again focusing
on the contradictory statements
 however, maybe not practical to recall the witness – if not a viable option, then judge gives instruction; but
if viable option and Crown doesn’t want the witness back on the stand (because strategic decision or
whatever), then judge doesn’t give any special instruction regarding that
R v R(AJ) 1994
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

“effective cross-examination of an accused serves truth-finding function” however if improper cross-exam
prejudices the accused/brings administration of justice into disrepute then court must intervene
Cross-examination that is repetitious, sarcastic, demeaning, humiliating, or that injects editorial commentary
that reflects counsel’s own opinions of accused is unacceptable
o Improper to ask accused why other witnesses are lying because risks reversing burden of proof (TOF
believes accused has to come up with answer or ends up looking bad – this is wrong)
o Sarcasm  lowers esteem of counsel, unprofessional, prejudicial, not helpful for truth finding (which is the
goal)
o Injecting own beliefs  puts counsel in the position of an “expert” which TOF should believe simply by
virtue of having years of experience dealing with witnesses
o Cross-examination questions must be relevant and legitimate and answerable by the witness
Opposing counsel has a duty to object but failure to object does not mean free reign for cross-examiner judge
must intervene and keep questions in check
Usually, can’t just ask for a new trial because of error  have to show that the error is irreversible (and chance of
different outcome)

Miscarriage of justice occurred because of the perception that justice had been done (and it hadn’t)  so new trial
ordered to protect the perception of justice
Re-Examination

General rule: Crown leads witness, cross-examined, cannot then lead them again because of inefficiency,
potential to confuse TOF, and potential to undermine the ability to answer in full defense
o Can’t split examination or case
o Re-examination is the exception to this rule
 Limited right
40

Purpose is to clarify something new that came up in cross-examination (rehabilitative)
that had some kind of implication  want to bring the full evidence/the full story on
the issue raised
R. v. Sipes
Rebuttal Evidence: pp. 571-576

Allowing Crown to split their case and present new evidence because new evidence that couldn’t have
been anticipated at all raised by Defense
Collateral Facts
If it’s irrelevant, shouldn’t be led
Can cross-examine on collateral matters; not worth bringing contradictory evidence on
Limitations
1. Cannot go to peripheral issue
2. Cannot be something Crown was aware of or should have reasonably been aware of (could have
anticipated)
3. Cannot go to a collateral issue  does it merely contradict general credibility of accused/defense
witness or does it actually go to issue of proof of case (if genuinely helps their case, then okay to pick
at that)  Krause 1986
 cannot merely go to the credibility
Lectures XV-XVI
CEA, Section 10; pp. 638-653
10. (1) On any trial a witness may be cross-examined as to previous statements that the witness made in
writing, or that have been reduced to writing, or recorded on audio tape or video tape or otherwise, relative to
the subject-matter of the case, without the writing being shown to the witness or the witness being given the
opportunity to listen to the audio tape or view the video tape or otherwise take cognizance of the statements,
but, if it is intended to contradict the witness, the witness’ attention must, before the contradictory proof can
be given, be called to those parts of the statement that are to be used for the purpose of so contradicting the
witness, and the judge, at any time during the trial, may require the production of the writing or tape or other
medium for inspection, and thereupon make such use of it for the purposes of the trial as the judge thinks fit.
 If intend to contradict a witness, need to call attention to original statement (have to be ready to
present them with evidence)
General Rule:
Know your client’s prior statement and refresh their memory with it
They get in the box, statement is not evidence  they testify
Exceptions
- trouble remembering (reviving memory)
- cannot remember at all (bring in original)
- bring it in for narrative purposes and only bring it in to show that fact made at all  details
explored after
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- spontaneous declaration of a shocked innocent person when put on stand
Prior Statement Evidence
 Witness statements taken  common proceeding , also, the basis on which witnesses called on
 What can be done with prior statements
o If inconsistent with what said at trial (especially on major issues) can be used to question
credibility and reliability  prior statements not admissible
 Can be used for multiple things
o To show collusion: remember Mattis case  two cops, identical notes; problem arises when
everyone is wrong on the same factors  Sharing evidence?
o Accuracy: Recollections at the time of the event probably more ACCURATE than at trial  an
example of prior statements being brought in (exception to the rule); only applies to identity
though
o Rebut bias: To show that a person made a certain allegation prior to something bad happening
 brought in to rebut the allegation of a recent fabrication (due to bias) (Sterling case)
 Can’t use the prior consistent statement to argue credibility
o Narrative purposes  Curto case (and Lorenz too)
 Allegation from a long time ago  statements brought in to help TOF understand how
allegation brought to authorities and made it to court room (and why it took so long)
 An exception because are referencing a prior statement – can only bring it in to show
that the statement was made not the details of the statement
o Exculpatory arrest statement: Statements from accused person on arrest and their response (of
shock etc) (Edgar case); brought in when accused takes the stand
 Spontaneity is necessary; shock element  increases probative value
Prior Inconsistent Statements and
Prior Consistent Statements  different from inconsistency; cannot lead consistency as support for
credibility and reliability because not very valuable (merely repeating same story over and over again
doesn’t make it more or less true)
Attacking Credibility of Own Witness
S 10 used for witnesses in general; but if the witness you want to cross-examine is your own witness, a
little more complicated (the presumption is that you don’t cross-examine your own witness (why would
you be challenging them?))
 but s 9 recognises that sometimes witnesses act up and may need to cross-examine them
Statutory Rules
9(2) Where the party producing a witness alleges that the witness made at other times a statement
in writing, reduced to writing, or recorded on audio tape or video tape or otherwise, inconsistent
with the witness’ present testimony, the court may, without proof that the witness is adverse,
grant leave to that party to cross-examine the witness as to the statement and the court may
consider the cross-examination in determining whether in the opinion of the court the witness is
adverse.
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Number of requirements for 9(2):
1. Need to have a prior statement (reduced to writing/recorded in some way) critical, because the
current testimony is inconsistent with what they originally said (that statement is why you brought
them in!!)
2. have to show the inconsistency  must be very significant; have to prove the truth of the statement
to prove the inconsistency
3. DO NOT HAVE TO PROVE THAT WITNESS IS BEING HOSTILE
4. Judge has a discretion where cross-examination is allowed if it’s in the interest of justice
 can do limited cross on witness and the cross is about the inconsistent statement specifically
 not admissible for its truth, and have to look at how much pressure put on witness

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This evidence is not admissible for its truth (unless the witness chooses to adopt this prior statement)
o if a witness keeps switching their story, can become problematic especially since 9(2) doesn’t
allow for an overall credibility attack
want to understand why they are saying new things
want to try to make them go back to what they original said
if they don’t, you have to destroy their credibility by doing a broader cross-examination
“may” grant leave  judge does not have to
o The risk: unless the witness goes back to their original comments, the prior statements are not
admissible
 But the jury would still hear the other statement (which may not be admissible for its
truth) and would have trouble setting it aside if not admitted (concerns regarding
fairness and reliability)
o If there were coercive elements during the “original” statement-making, should obviously not be
admitted
Exemplified in SCL case:
R v S(CL) 2011
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
Unlike s 10, the point of s 9 is not to destroy the credibility of the witness, but to get them to adopt their earlier
statement as the truth
Witness claiming no recollection of events that they discussed in earlier statements can constitute inconsistency
Party calling witness wants to cross-examine that witness to expose the original story/statement to the TOF  have
to show there is an inconsistency between what witness is stating in-court and what they said before (what made
them a useful witness)
o The opposing counsel will try to block this cross-examination
Burden of proof test expanded: whether the ends of justice would be attained by allowing the cross-examination
o However, pretty rare that court will allow this
Factors to be taken into account for permitting cross-examination:
o Actions of police officers who had contact with witness prior to making of the statements (and failure of
counsel to call these officers to testify)
o Nature of police questioning
o Reason given to witness as to why statement needed
o Whether witness detained (or believed themselves to be detained) at time statement was given
o Whether duress, coercion, inducement, trickery, mistreatment by police was present
o Length of time leading up to statement taking
o Demeanour, mental state, level of impairment of witness during statement making
o Etc…
o If these types of pressures occurred on witness, evidence would be tainted
43

If judge thinks it’s a feigned loss of memory, will definitely want a cross-examination where inconsistency is
exposed and original statements brought up
R. v. Milgaard 1971
 Nichol John doesn’t remember any of the stuff she said in her police statement
 MILGAARD DIDN’T DO IT THOUGH! – famous case of a Canadian wrongful conviction
 So how did they all have these vivid memories?
o Police officers feeding tons of info to these young, traumatised people
 This case shows us how prejudicial it can be to have this other “evidence” (prior statement) floating
around in front of jury
Leading decision on application of s 9(2)  also laid out the procedural steps for using it
1. Counsel advises court of desire to make an application under s 9(2) of CEA
2. Court directs jury to retire
3. Counsel then advises TJ of particulars of application and produces alleged original statement in writing
4. TJ reads statement, determines if there is indeed inconsistency; if none, then done; if there is
inconsistency, Counsel called upon to prove statement
5. Counsel can prove statement by producing it to witness  if witness admits to statement, it is proved; if
does not admit, Counsel must prove it through other evidence
6. If witness admits, counsel for other party has right to cross-examine as to circumstances under which
that original statement was made (in attempts to prevent evidence from being admitted by TJ); original
party has right to show evidence that would not permit other party to cross-examine
7. TJ decides if cross-examination will be permitted or not  if permitted, jury recalled
Under s 9(2)  can be permitted to cross-examine witness without having to prove witness is hostile, but crossexamination is limited to questions regarding the inconsistencies
Under s 9(1)  if a subsequent application is made declaring the witness hostile, if permission is granted, crossexamination is opened up (broader)
9. (1) A party producing a witness shall not be allowed to impeach his credit by general evidence of bad
character, but if the witness, in the opinion of the court, proves adverse, the party may contradict him
by other evidence, or, by leave of the court, may prove that the witness made at other times a
statement inconsistent with his present testimony, but before the last mentioned proof can be given the
circumstances of the supposed statement, sufficient to designate the particular occasion, shall be
mentioned to the witness, and he shall be asked whether or not he did make the statement.


This is the second step, done after 9(2) to attack the overall/general credibility of your witness
Extra step: need to prove adversity of witness
o Complicated definition but generally means the witness that was on our side has officially switched
over/abandoned the side they were on and went to the other
o Concept of hostility  explicit demonstration of adversity; one way of proving adversity but isn’t the
standard
44
o
S 9(2) allows counsel to explore the reason for the adversity by being able to ask a lot of broad questions
if there is no reasonable explanation for the witness to have switched side (and there’s a shitty motive
for their switch), then have succeeded in showing adversity of witness
R. v. Malik 2004

Testimony pressured out of the witness  judge believes she’s faking her lack of memory

But judge doesn’t allow the s 9(1) examination because there’s no credibility to destroy
o The purpose of s 9(1) is to lower the credibility of the testimony that’s helping the other side/screwing yours
over; if it’s not doing that, then won’t let you do a 9(1) cross
o The witness who says “I don’t remember anything”, no other version of events to diminish/destroy

The purpose of permitting cross-examination under s. 9(1) is to permit the party calling a witness to attempt to
decrease the impact of any positively harmful or damaging evidence given by that witness, where that evidence is
substantially inconsistent with prior statements of that witness.

Whether or not the party calling the adverse witness intends to subsequently advance a B. (K.G.) application with
respect to that witness's prior statement is irrelevant to an application under s. 9(1).

Under s. 9(1), TJ must consider whether an "adverse witness" declaration is appropriate with respect to the Witness.
As set out in Hanes v. Wawanesa Mutual Insurance Co., supra, the following findings are necessary:
(i) that the witness made the alleged prior statements;
(ii) that the prior statement is substantially inconsistent with the witness's current testimony;
(iii) that the witness is "adverse";
(iv) that in all the circumstances, the admission of the prior statements, for the limited purpose of cross-examining
the witness, would best attain the ends of justice.
If under 9(2) there is a reasonable explanation for the inconsistency, then a 9(1) application fails because
witness isn’t being adverse by giving another account – they may be telling the actual truth now, and so
their inconstancy/new story is reasonable.
If, however, during the exploration of the inconsistency under 9(2) the witness is being sarcastic, snarky,
etc (in other words, adverse) for no reasonable reason, then counsel can apply for a 9(1) and get to
obliterate their own witness on the stand by exposing the inconsistency, bringing in the other/original
statement and destroying/lowering their credibility for the story they are telling now
If simply saying they “can’t remember”, whether feigning or not, don’t get a 9(1) cross if there’s nothing
extra being added (no “new” story/evidence being brought in for which credibility needs to be destroyed).
If stating that they cannot remember their original statement but giving a new account of events, then get
a 9(1) and use it for destroying the credibility of the new stuff brought it (that is adverse to you)
Re-Examination
R. v. Cassibo 1982

In general, a witness may not bolster his testimony by proving that he has made prior consistent statements.
45
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Proof that the witness had made prior statements consistent with his evidence is, however, admissible to rebut an
allegation of recent fabrication.
A bias of the legal system exposed in this case: young witnesses could not be believed and convictions could not
happen on their evidence unless they had corroborating evidence  this was required by statute
o The big thing in this case was whether SFE could be used as corroborating evidence in a situation like this
(court said yes) and whether the danger of collusion outweighed that because sisters (court said no)
Can cross on a collateral issue but cannot call evidence to contradict on collateral issues (trying to put magazine
into their hands to show that it was the source of their allegations)
o However this wasn’t a collateral issue
Reference to prior statements of complainants
o This is an example of prior statements being led; this isn’t supposed to be allowed in
 But here, allowed because of the narrative exception (provides court with understanding as to what
put a stop to the abuse)  you admit it simply to state that it happened, but don’t go to the
impressible part of stating the details of what was said to the mother
 Also allowed because it rebutted the defense’s argument that the magazine was the source of the
complaints – told their mom way before magazine even published, so couldn’t have been the
magazine
Crown knows that mother is a volatile witness who has allegiance to the accused and is adverse to the complainants
o Crown calls her and limits her testimony by asking her the most basic stuff
o But the Defense goes to town in cross-examination and asks her questions that were not brought up by
Crown  this happened on cross-examination! New evidence brought up that Crown hadn’t explored in
their examination (whether the complainants said anything to their mother – mom said they didn’t)
o So Crown applies for RE-EXAMINATION on a s 9(1) application
 (s 9(2) not applicable here because there was no prior written statement (police didn’t write down
her complaints) – where prior statements only oral, go straight to 9(1)
o The purpose: to destroy her credibility on this positive evidence that she brought in (because an important
part of complainants’ story now called into question)
 Adversity found through her motive (switched sides at trial because on the side of her husband)
 Also through lack of reasonable explanation for why her story changed (original statements given to
police, compared to statements given now)
BTW if counsel knew their witness would switch sides/be adverse, not entitled to 9(1)
Hearsay
“Hearsay evidence is testimony in court, or written evidence, of a statement made out of court, the statement
being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon
the credibility of the out of court asserter”
 An out of court statement presented for its truth where there is no opportunity for contemporaneous crossexamination of the declarant
Presumptively inadmissible


This out of court statement can come in any form
o Police statement
o Diary entries
o Phone calls etc
Necessity for hearsay evidence arises in three different instances
1. Original declarant is no longer available (maybe died, lost their mind etc)
46
2. Where witness refuses to give the truth which is found in the hearsay/out of court statement (s 9(1)
and 9(2) not admissible for its truth but hearsay is)
3. When witness recants (UFJ)
The question is always: when is this an acceptable risk to take?
 Wrongful conviction (based on hearsay evidence) v wrongful acquittal (based on lack of evidence due to too
strict hearsay evidence rules)
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Main reason for excluding hearsay evidence (HE): lack of oath and inability to cross-examine
To decide whether out-of-court statement is hearsay, ask
o Who is the declarant
o What does the statement assert
o What is the purpose of the tendering assertion
o If it is to prove the truth of the assertion, there is a hearsay problem
if the relevance of the statement lies in the fact that it was made/said (not asking TOF to find out if what said
was true) not hearsay and admissible
o
words were uttered and they caused witness to do something (“kitchen is on fire” so I left)
o Mattis case: drawing inference that copied off each other because bringing in out of court evidence
to show that what cop A wrote is the same as what cop B wrote
o Truth of what was said is not important to the case
if however goes to truth of the statement then hearsay and presumptively inadmissible
o common law developed exceptions where hearsay evidence can be admitted for its truth
when you bring in a witness to testify you don’t start off immediately with the act/what they say  take
them through the whole story; encouraging recreation of narrative is important because want to get the
whole story
If you need the hearsay evidence for the truth of its contents, then Khelawon
R v Khelawon 2006
 Fear that untested (convincing) hearsay evidence will be given more weight than it deserves
 Essential defining features of hearsay evidence:
o Statement is adduced to prove truth of its contents
o Absence of contemporaneous opportunity to cross-examine declarant
 Only when evidence tendered to prove truth of its contents will the need to prove its reliability arise
 Law of hearsay extends to out-of-court statements made by witness when going to the proof of truth of its
contents
Traditional Hearsay Exceptions
BASED ON CATEGORY SYSTEM
Older Categorical Approach:
 categories which willing to take the risk on
o Past Memory Recorded
o Prior Identification of a Stranger (prior ID is much more critical than what remember at trial)
47
o
Admissions against interest (contrary to financial or liberty interest)
Declarations Against Interest
 People usually say things that are to their benefit so when say something against their own interest,
more reliable because less likely to be a lie
R v Demeter 1978
 Not enough that it’s against your interest, would have to say it in situations where you would be also be
vulnerable
 This was the stricter standard
R v Lucier 1982
Dying Declarations
 Mortally injured, anticipate a soon death, and person states who caused them death
 The belief was that a person would not state a lie with their last breath
 Again, the standard was strict: had to have hopeless expectation of death (Aziga)
Declarations in Course of Duty
 Based on idea that if you have a certain (public) duty, will be making statements much more carefully
 Arres v Venner  nurse’s notes, doctor’s notes, coroner’s notes (Larsen)
Spontaneous Declarations: 808-816
 Person reflexively responding to spontaneous event where they would have no time to make up the
statements made in such a spontaneous situation (where inseparable from physical activity itself
(getting stabbed, house on fire etc))
o Arrests usually aren’t considered that spontaneous
Oral History in Aboriginal Title Cases: pp. 408-411
 Outlined in Mitchell case
 Driven by matters in issue an Aboriginal right:
 Hard test to establish
o Have to show existence of traditional practice/custom, that it was integral in pre-contact society,
and that there is reasonable continuity between then and present day
 Insight to colonial perspective only (not the Abo one which trying to get at), and using only one type of
evidence  obvs problematic
Delgamwuuk v BC 1997
 The difficulty with this evidence is the fact that it serves so many purposes – truth-finding not
necessarily being one of them (but truth-finding is what traditional Canadian courts do and need)
 They are also out-of-court statements that fly in the face of traditional hearsay rules
 But oral evidence = only record of Aboriginal past for many groups  rules of evidence need to be
expanded to admit such evidence and place it on equal footing with historical documents
o To not allow this evidence would leave Abo peoples with nothing to make their arguments
with and would make the rights they do have seem intangible (can’t fight for them)
 However, no blanket-admissibility  admissibility determined on case-by-case basis
48
Mitchell 2001
 Rules of evidence still apply, however they’re applied more flexibly to account for the different type
of evidence brought in on behalf of Aboriginal claimants (and because of s 35(1) promise of
reconciliation)
 Rules of evidence informed by broad flexible principles applied purposively to promote truth-finding
and fairness rules of evidence should facilitate justice
 Evidence must be
a. Useful  tends to prove a fact relevant to issues of the case
i. Offer evidence of ancestral practices and their significance that would otherwise
be unavailable
ii. Provide aboriginal perspective on the right claimed
b. Reasonably reliable  ability of witness to know and testify to such oral histories
c. Pro > Pre or else excluded at discretion of trial judge
 THIS WAS THE OLD SYSTEM 
list of exceptions set up as categories and yours would have to fit into one of these and if it did, could use it
for the truth of its contents
State of Mind – hearsay-light
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Slightly different from the other exceptions
Don’t use the evidence directly (like for the others) but as circumstantial evidence
Showing animus which may lead to motive
Can draw inference about state of mind through what the person said and that state of mind is/might be
relevant to case
R. v. Baltzer 1974
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not the form of the statement that gives it its hearsay or non-hearsay characteristics but the use to which it is put
insanity defense – weren’t of sane mind during the time of the offense
we don’t want these statements in for their truth – we want them in to show the (insane) state of mind
R. v. Panghali
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Hysterical wife prior to shooting – dispute going on shows state of mind (anger, animus etc)
Recognises exception but also outlines the limitations
Wife’s diary mentions specific violent acts, deteriorating relationship etc
o Can be used under state of mind exception but have to show the negative state of mind only
o SOM shows that there was a conflict within marriage
o TOF now invited to make the inference for motive on husband’s behalf (motive to kill her)
If want to get in prior violent event, have to go through fuller hearsay exception – all you can get in under SOM is to
make the conclusion that there was conflict between two people and use it to infer motive
Limited exception because cannot bring specific events that occurred under SOM exception
o For example, if phone call included “he’s pointing a gun at me right now” can’t bring this statement in for its
truth
Get evidence in as circumstantial evidence when you can’t get it in through a hearsay exception
To get this kind of evidence in, have to show that the statements were said in a fairly natural way/environment of a
fairly clear state of mind without a motive to misrepresent
49
Statements of Intent

Can also be used to state intentions  person had intent to go or do something (inference is that they did do that
because it’s a presumption that people do what they intend to do)
R v Starr 2000
 Anticipated testimony
 Hearsay presumptively inadmissible to show intentions of third party
o A statement of intention cannot be admitted to prove intentions of someone other than
declarant unless hearsay exception can be established at each level of hearsay
 To admit
1. Statement must be reliable (not made under circumstances of suspicion)  party seeking to
have evidence admitted must prove on BOP
2. Jury must be instructed: only admissible as evidence of declarant’s intentions
3. Pro > Pre
The Principled Approach for Hearsay Evidence
R v B(KG) 1993
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Provided initial blueprint for new approach  extracted principles from the old categories
Evidence of prior inconsistent statements of a witness other than the accused should be admissible on a principled
basis
 Reliability and necessity expanded and become the test for admissibility
Framework includes some precursors:
First precursor: do we want the statement for the truth of its contents?
Second precursor: is the evidence found in the out of court statement is otherwise admissible?
Third precursor: if state coercion present, inadmissible on that basis
Reliability:
 This is threshold reliability, not ultimate reliability because that’s what TOF decides on
o Reliability driven by the circumstances in which the statement was made; some things that are present in
court are missing in out of court situations (no oath, can’t see the person, can’t cross-examine)
o If there are adequate substitutes for those 3 missing things (in “court-like” circumstances), then threshold
reliability met  generally want all three but if 2 present and strong enough to overcome third, then passes
test
1. Oath
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impresses upon witnesses the seriousness and significance of their statements especially where a
person may be incriminated because of those statements
carries more evidentiary value when admitted at trial; TOF asked to weigh/decide between two
sworn testimonies not sworn v unsworn
offers explanation when recantation of original statements occurs
sworn prior statements carry a lot of value in false testimony trials
severe criminal sanctions for falsely testifying under oath serves as deterrent
there may be substitutes for the oath and they don’t make statements any less reliable but it’s still a
spectrum
o in a police station can be explained and the consequences of not testifying/giving false
testimony
o oath made to a lawyer in a law office
o less stringent: promises made to tell the truth to a police officer, interview, convos occurring
randomly
50
2. Presence
 Complete videotape record satisfies principled basis for admission of hearsay evidence
o Get to hear and see the person and the interaction between the questioner and the person
answering
o This also has a spectrum: just audio, transcript (clear record of exactly what was said but
visual missing), signed statement from person
3. Cross-examination
 Prior inconsistent statement distinguished from hearsay because can cross-examine on trial
o Witness is present but saying they forgot or don’t know; so right to cross-examination is
available but can’t really use it
Necessity
o Not usually the critical factor because in most cases it’s obvious: if a person is dead or lost or super young,
forgot or can’t come to court otherwise, obvious case of necessity (because can’t bring evidence in, in any
other way)
o Usually satisfied when witness is unavailable however must be given flexible definition  witness doesn’t
have to be unavailable
 However have to show best efforts (saying “I don’t this person is going to come is not enough”)
 In this case, what happened was the witnesses made a radical change in their story and may be
“holding the truth hostage”  so, radical change in story can also be a reason for necessity
But what about content of the statement and what was actually said was true? Why limit the reliability circumstances to
just those 3 and the situation in which the statement was given
o A situation can arise where the 3 factors are not present/test fails and you can’t bring the evidence in, but it
would be super helpful for the TOF
o Some cases focusing on the actual truth of the statement  want to bring the hearsay in for its truth
 Next few cases: examples where all 3 factors fail, but statements still reliable using other factors
R v Khan 1990
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Should avoid admitting hearsay evidence of children through category of spontaneous declaration
Two general requirements for admitting hearsay evidence:
o Necessity  standard is of reasonable necessity
o Reliability  timing, demeanour, personality of child, intelligence, absence of any reasons to expect
fabrication
But also, not prompted, said right after the event, unusual for her to be using sexual language unless exposed to
sexual act, corroborating physical evidence
o Spontaneous statement
o No leading questions
o Corroborated evidence
R v Smith 1992
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Need a sense of trustworthiness for reliability to be met
No motive to lie  evidence should be able to come in; sufficiently reliable
R v U(FJ) 1995
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If statement is being introduced solely to impeach witness then inquiry ends at that point  voir dire continues if
calling party wishes to make substantive use of statement
Necessity criterion met whenever a witness recants
51

Reliability can be met where statement has striking similarity to another statement (which is admissible) and there
was no opportunity for collusion
Content and lack of collusion and lack of improper influence/pressure by investigators or third parties
For a while, twilight zone regarding hearsay evidence so what counsel did was run KGB factors, and then if those failed,
try Khan, Smith, or UFJ to try and get the hearsay evidence in
 but Starr case said to only use KGB factors without explicitly ruling out the other outlier cases!
Khelawon saved the day  meshed the different tests
R v Khelawon 2006
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KGB factors affirmed but it’s not the end of the world if fail any or even all 3 because inherent trustworthiness is
also looked at
But reliability now broad-based/expanded: decided using circumstances in which statement given and likelihood of
truth
3 KGB factors, then inherent trustworthiness factors
o Motive to lie?
o Backed up or inconsistent with corroborative evidence?
o Contemporaneity?
o Leading questions or pressure?
o Logical?
A lot of emphasis put on cross-examination
Only when evidence tendered to prove truth of its contents will the need to prove its reliability arise
Law of hearsay extends to out-of-court statements made by witness when going to the proof of truth of its contents
R. v. Chretien
This case ties it all together
 Stronger ties with co-accused of motive; based on alleged confession given soon after the events  but on the
stand he doesn’t remember anything (suspicious)
o Tried to refresh his memory, didn’t work
o 9(2) tried based on feigning
o Can’t really do 9(1) because didn’t give any new stories
o But had given a pretty detailed confession
Summary of the law (para 62)
1. Start with presumptively inadmissible (out-of-court statement being brought in because hearsay)
2. Necessity and (threshold) reliability has to be brought in
a. Procedural reliability (KGB factors—circumstances in which statement given)
b. Substantive reliability (inherent trustworthiness)—how likely is the truth of this statement
Statements of accused persons presumptively admissible btw
Hearsay Test:
1. Precursory Factors
 Want it in for its truth? (yes)
 Is it otherwise admissible? (yes) – someone saying accused admitted to me is evidence we want
 Coercive circumstances? (no)
2. Statutory exceptions?  s 30
3. Common law exceptions?  categories
4. Necessity/Reliability
a. Necessity? Not what’s necessary for Crown to win their case but necessary because can’t get the evidence in
any other way
52
b. Reliability
Procedural Reliability
1. Oath? Yes
2. Presence? Yes, videotaped confession
3. Cross-exam? Sort of; can do it but he’s forgetting
Substantive Reliability (Inherent Trustworthiness)
1. Motive to lie? No
2. Corroboration? Yes; content of confession matches physical evidence
3. Contemporaneity? Yes, statement soon after told by accused
 all the factors seem to be checked off  so now, what do you say to jury?
Principles to cover for instructing jury
1. need to accept that the statement was made (jury has to believe the person testifying)
2. need to consider it in the context of all the other evidence
3. no cross-examination could occur so the weight you put on this out-of-court statement is important
EXAMPLE
Vetrovec Witness brought in
 Says that he thought only beating would happen, but accused instead tortured and shot the victim
 VW gives statement to police where extensive notes taken
o will want this evidence KGB’d, but let’s say can’t
 witness gets on the stand and says can’t remember anything (from crime scene or from statement) = Crown has lost
critical evidence
o Crown asks jury to be sent out and to have the VW’s memory refreshed (least invasive)  memory not
revived
o so Crown asks for 9(2) = allows Crown to explore inconsistency and see if witness will go back to original
statement with limited cross (Cassibo says crap police notes not good enough, but let’s say we had good
notes so can use this); memory feigned, being adverse AND making new stuff up
 so Crown asks for 9(1) to demolish credibility and can’t use evidence for its truth
 so make a hearsay application
o do you want the evidence in for its truth? Yes
o would this evidence otherwise be admissible? Yes; first-handing viewing of a crime
o coercion? A little maybe, but probably not enough to boot it out on that alone
 judge decides if statement can be brought in for its truth
 existing exception? Khalewon says old exceptions are still important: if you can fit in any of the old
categories, presumptively in BUT YOU STILL NEED TO PASS NECESSITY AND RELIABILITY (can’t come in if
massive reliability problem for example)
o no; so have to go to broader test necessity/reliability  necessity is present
o Reliability:
 KGB Factors
 Oath? Yes
 Presence? Not the best but police notes still available
 Cross? Not the best but can still be questioned
 Inherent Trustworthiness
 Motive to lie? Maybe; vetrovec witness after all
 Corroboration? Would be key here
 Contemporaneity? Yes; statement given right after
 Pressure? Maybe a little bit
53

Judge has to weigh all of this, then if allow it, give charge to jury which includes
o Need to accept that the statement was made
o This evidence not subject to the same things all other evidence is (no oath, can’t cross examine, vetrovec
witness couldn’t remember statement AND they’re a vetrovec witness etc)
o If accept, have to use it like all other evidence and decide weight to give it
o Can use the statement for its truth
Statutory Exceptions
1. Stat exceptions first
 So important, legally allowed to come in immediately and nothing further needs to be done
 Section 30 of Canada Evidence Act is the only section we need to know for this course (Business
Records)
2. Then common law
3. Then broader necessity/reliability
30. (1) Where oral evidence in respect of a matter would be admissible in a legal proceeding, a record
made in the usual and ordinary course of business that contains information in respect of that matter is
admissible in evidence under this section in the legal proceeding on production of the record.
 so for example, a receipt stating that a person had bought something is technically hearsay but would probably be let
in because the system is set up to make a reliable and routine record of what happened  regularised system (that is
presumptively unbiased; simply records what happened)
 therefore admissible for the truth of its contents
Has to be the actual declarant doing the recording!!!
Evidence inadmissible under this section
(10) Nothing in this section renders admissible in evidence in any legal proceeding
(a) such part of any record as is proved to be
o
(i) a record made in the course of an investigation or inquiry  because no longer
unbiased/neutral with no motive
o
(ii) a record made in the course of obtaining or giving legal advice or in contemplation
of a legal proceeding,
o
(iii) a record in respect of the production of which any privilege exists and is claimed, or
o
(iv) a record of or alluding to a statement made by a person who is not, or if he were
living and of sound mind would not be, competent and compellable to disclose in the
legal proceeding a matter disclosed in the record;
(b) any record the production of which would be contrary to public policy; or
(c) any transcript or recording of evidence taken in the course of another legal proceeding.
54
R v Wilcox
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Takes us through all the options because kept failing on tests
Person in issue recording amount of catch
Records are often admissible because usually can’t remember these things  but then in hearsay territory and want
it in for its truth
 Go through the test?
o Otherwise admissible? Yes
o Coercion? State not involved so no
Any common law exceptions?  Presumptively in subject to the rare case
 Common law business records exception
o Original entry made contemporaneously in the routine of business by a recorder with personal knowledge of
the thing recorded who has a duty to make the record and had no motive to represent  FAILS ON ALL OF
THESE CRITERIA
o Barely losing these makes a difference  helpful to show that you got very close even though didn’t
 Statutory exceptions  s 30
o Problem with the “usual and ordinary” requirement  he wasn’t supposed to be the one doing it
 Go to broader necessity/reliability
o Have necessity because he doesn’t remember and record is the only chance to bring the evidence in
o Reliability, meh  not under oath when he made the record, but contemporaneous and ability to crossexamine him (even though can’t remember)
 Really went with inherent truthfulness  routinely creating a careful record with no motive
whatsoever to misrepresent; reliable evidence
R v Blackman 2008
Prior Testimony

Necessity because declarant unavailable and trustworthiness because testimony given under oath +
cross-examination
Statutory Rule
 Evidence at preliminary inquiry may be read at trial in certain cases
715. (1) Where, at the trial of an accused, a person whose evidence was given at a previous trial on the same charge, or
whose evidence was taken in the investigation of the charge against the accused or on the preliminary inquiry into the
charge, refuses to be sworn or to give evidence, or if facts are proved on oath from which it can be inferred reasonably
that the person
(a) is dead,
(b) has since become and is insane,
(c) is so ill that he is unable to travel or testify, or
(d) is absent from Canada,
and where it is proved that the evidence was taken in the presence of the accused, it may be admitted as evidence in
the proceedings without further proof, unless the accused proves that the accused did not have full opportunity to
cross-examine the witness.
R v Potvin 1989
 S 7 and 11(d) Charter rights not infringed if accused had opportunity to fully cross-examine the witness
55
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“May” be admitted : ultimately, still at discretion of trial judge whether admitted or not (pro>pre)
S 715(1) aims to give judges discretion because of two main types of mischief that may be present
o discretion aimed at situations where unfairness in the manner in which evidence obtained
o unfairness of the trial itself
discretion is exercised after weighing two competing concerns: fair treatment of accused v public interest
Admissions and Confessions
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judges come in and start with nothing  things have to be admitted
Crown and Defense both want to call any evidence they will need to prove their side
Formal submissions allow things to be brought in without having to prove each thing separately
Need to identify the issue and need to figure out the wording of the admission
Formal Admissions: pp. 343-348
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Bargaining process between Crown and Defense Counsel  come up with list of admissions – things that
are conclusively proven and can be relied on without evidence needing to be called
Benefits:
o To justice system as a whole because time and space isn’t wasted (and jury doesn’t have to
waste time on obvious issues)
o Convenience
o Importance in probative/prejudicial balancing (gorier, prejudicial things don’t have to be brought
in)
Admissions have to be agreed upon by both sides or else cannot be admitted
o Cannot force the other side to admit to certain things but unreasonably choosing not to admit
certain evidence is seen as an unethical practice
s 655 of Criminal Code
o if Defense/Accused admits to the facts, need for proof is dispensed
o s 655 does not exist for Defense to make admissions on behalf of accused, framing them to suit
accused’s purpose, and insisting on admittance (R v Castellani 1970)
however, Crown is also not allowed to not accept an accused’s admission for the purposes of keeping an
issue artificially alive or for gaining entry for prejudicial evidence (R v Proctor 1991)
don’t have to make admissions through s 655 specifically  can go through common law route as well
s 606 allows for an accused to plead guilty (or not guilty)
o if accused chooses to plead guilty, conditions for court accepting that guilty plea are found in
606(1.1)
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Informal Admissions
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Statements of a party outside of the courtroom where they admit to/say something that would be
helpful to the other side (“yea I was speeding” / ”yea I hated her” / “I was drunk”)
Can be absolute key to the case – powerful but also very dangerous type of evidence especially since
disturbing number of people will admit to doing things they didn’t do (and people stating they saw
something when they really didn’t)
56
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Statement of shock is an exception to the usual rule that a witness on the stand can’t lead statements
that are self-serving

if a statement is to be used by one party, it must be brought in, in its entirety
o once it’s in, statement as a whole is fair game/evidence for both sides
reliability issues regarding whether the statement was even made  brings in the issue of admissibility

ADMISSIONS OF PARTIES ARE NOT HEARSAY EVEN THOUGH MEET THE DEFINITION
Why? Because:
 can tell cross-examiner to probe certain things
 at any point, can take the stand and tell own version of events regarding the statement
 basically, prior statements can be challenged
 Morin case  statements of parties are presumptively admissible (different from hearsay where
presumptively inadmissible); even if crappy evidence, can come in as long as stated by actual parties
A FEW EXCEPTIONS THOUGH
 Just because came out of accused’s mouth doesn’t mean immediately admitted  still have to do
probative/prejudicial balancing
 On the reliability issue, Hunter is a good exemplifier case
Probative Value
 R v Hunter 2001: overheard utterances that are part of a larger context will be highly speculative in
meaning if the surrounding context is unknown to the TOF which lowers the probative value of the
utterance; but if the fragmented utterance is also highly prejudicial, should not be admitted
 the above is a slight nuance from the original rule Where severe lack of context, not reliable enough and
cannot be admitted (Ferris) (“I killed David” can be taken at face value but if you add some stuff before and
after, could be a completely different statement)
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aggressive questioning can lead people to make statements that are false  obviously goes straight to
reliability
If person questioning is a police officer, have special rights but if person is not a police officer or you
don’t believe they’re a police officer (because undercover), then those rules don’t apply
AND THIS COULD BE A HUGE PROBLEM  Mr Big cases
o Providing person massive incentive to confess or make incriminating statements
o Typically this approach is only done in special circumstances where police satisfied that they
cannot get to the person in any other way (because long process, expensive)
o Allows police to create evidence when investigation is at a standstill
But, very problematic because so many false confessions, coercive elements, lots of bad character
evidence because accused agreeing to do a ton of small crimes in order to get into the group,
controversial aspects/affecting integrity of justice system
Before the Hart case, simply an issue of reliability that goes to TOF because statements of accused
presumptively admissible
Revisiting Probative Value:
57
R. v. Hart 2014
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Confessions coming out of “Mr Big” scenarios treated as presumptively inadmissible because they are different
from typical confessions
o Huge pressure put on accused
o Accused implicated in a bunch of other crime in order to get to the confession
o Puts integrity of justice system at risk
presumption of inadmissibility overcome where Crown can establish, on balance, pro > pre
o confessions’ probative value is a function of its threshold reliability  has to be sufficiently reliable to pass
the test and be let in  key to letting this evidence in (has to be very likely to be true to outweigh the
inherent prejudice and risk of being untrue)
o prejudicial effect = harmful character evidence (moral and reasoning prejudice); prejudice is inherent
o Crown has onus of proving pro > pre because they’re the ones who created the Mr Big scenario in which
confession emerged  forces Crown to keep conduct in check, keep detailed record, and minimise abusive
behaviour
How does Crown establish this threshold reliability? Para 102
1. Corroborative evidence – matching specifics of what the accused described to actual objects/things found at
crime scene
2. Level of vulnerability of the accused  how susceptible to pressure? Age? Etc
3. Circumstances/context of confession: Level of coercion, length of operation, tactics used, etc

Because detailed confession coming from actual accused themselves, on tape, with powerful inducements, TOF very
likely to convict on it
o Voir dire can take forever because have to call evidence on all of these things
So
1. Crown argues reliability on the probative side to try to get the Mr Big confession/evidence in
2. Defense argues abuse of process on the prejudicial side to prevent confession from being admitted (s 7)

Usually not sufficient that aggressive police tactics used  has to be an abuse of process
o Confessions derived from physical violence are examples are coercive tactics that are not allowed

if Crown cannot establish admissibility of the confession, all other evidence part of Mr Big operation = irrelevant

the problem with Mr Big operations and the confessions obtained is Canadian law does not offer enough protections
to accused who confess under such pretenses
o Danger of Unreliable Confessions
o Prejudicial Effect
o Police Misconduct
Solution:
1. recognizes a new common law rule of evidence
2. relies on a more robust conception of the doctrine of abuse of process to deal with the problem of police
misconduct
o Judge always has ultimate discretion
purposes of this two-pronged approach  to protect an accused’s right to a fair trial under the Charter, and to
preserve the integrity of the justice system.
Principle of Self-Incrimination: Coercion, Reliability, Abuse of Power
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CBC Documentary “Mr. Big” at http://www.cbc.ca/fifth/episodes/2014-2015/mrbig
Exceptions
58

for some hearsay exceptions, the circumstances in which the statement was made guarantees
trustworthiness in a way that dispenses with the need for an oath and cross-examination
R v Phillips 1995
 speaking to completely different police (than by those who arrested him), time for reflection and
preparation of statements, and benefit of legal advice in the interim = destroys connection between
statements made at arrest and those in police station
o doctrine of severability applies  self-serving and non-explanatory statements inadmissible
R v Streu 1989
 once established that admission was in fact made, treated the same as if stated in witness box
 if simply a hearsay statement and there is no indication that there is truth of contents/belief in the
contents of the statement then not admissible as proof of its contents
CBC documentary “The Interrogation Room” at http://www.cbc.ca/fifth/episodes/2014-2015/theinterrogation-room
Rules of evidence specific to an accused  voluntariness rule (only applies to accused)
 If an accused confessed to a person in authority and accused knew it was a person in authority, Crown
has to prove BARD that the confession was voluntary (Mr Big confessions not caught by this because
accused unaware of the police officer status)
 Addresses the issue of
o reliability of statements that come out of aggressive questioning/pressure tactics
o integrity/reputation of justice system
Voluntariness Rule
Asks whether unreasonable tactics/inappropriate pressure used to get to the confession?
 coercion (and therefore voluntariness) comes in regarding prior statements and s 9(1) and 9(2) for regular
witnesses though
Rules of evidence specific to an accused  voluntariness rule (only applies to accused)
 If an accused confessed to a person in authority and accused knew it was a person in authority, Crown
has to prove BARD that the confession was voluntary (Mr Big confessions not caught by this because
accused unaware of the police officer status)
 Worried about
o reliability of statements that come out of aggressive questioning/pressure tactics (voluntariness)
o integrity/reputation of justice system
R v Oickle 2000
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Common law Confessions Rule  voluntariness as broadly understood
if an “air of oppression” then not voluntary and voluntariness is important because it directly correlates with
reliability
Confessions Rule has broader scope than Charter (Charter is almost like a bare minimum before rights are seriously
infringed)
Violations of Confessions Rule always = exclusion of evidence obtained under interrogation (whereas with Charter,
have to prove Charter violation first, and even then, only excluded if it would bring the court into disrepute)
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5 basic kinds of false confessions:
1. Voluntary
2. Stress-compliant
3. Coerced-compliant  majority of false confession cases before the courts
4. Non-coerced-persuaded
5. Coerced-persuaded
type of interrogation crossed with type of suspect/individual and their personality, age, background etc
false confessions are rarely the product of proper police techniques  importance of videotaping interrogations
(monitoring police techniques and behaviour, deterrence, public policy etc)
Statement cannot be a product of fear or favour (implicit/explicit)
o Fear: violence or fear of violence including subtle threats
o Improper inducements: number one reason for lack of voluntariness
 legal inducements not allowed  quid pro quo (an agreement based on accused agreeing to talk;
there’s a link)
 Moral inducements  still dangerous because a type of pressure, but allowed
voluntariness does not look at the actual reliability of the statement but the context in which it was stated (was it a
product of threat or favour). To knock out voluntariness, show that:
1. Threat or favour put out
2. Threat or favour tied to talking (explicitly or implicitly)
Threat or favour causative – requires temporal element/connection
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oppressive conditions/coercion will also make confessions inadmissible  inhumane conditions, depriving suspect
of food, water, clothing, etc, excessively aggressive and intimidating questioning for prolonged period of time,
o confronting accused with exaggerated or false evidence is very serious however even it won’t knock out the
evidence
operating mind  suspect has to be aware of what’s going on and what they’re doing to make voluntary
confession; accused in a delusional or intoxicated state, not of sound operating mind obvs
other police trickery  focused on maintaining integrity of criminal justice system ; would it “shock” the
community?
Admissions of Co-Accused:
R. v. Grewall 2000
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persons accused of the joint commission of crime should be tried together.
An out-of-court confession is only admissible against the accused who made the statement. It is not admissible
against the co-accused.
o however, complicated when other people are being tried at the same time because some
statements/evidence admissible for one person but not others
big problem: common law states that admissions are admissible against you, but not against co-accused
o people downplay their role, and increase the role of the others
o accused may not take the stand and cannot then be cross-examined on their statements
o so traditional approach: instruct the jury what evidence to use and regarding what/who  obviously
difficult to ensure that jury doesn’t apply inapplicable/inadmissible evidence for each person
newer/preferred approach: to edit out the inadmissible/inapplicable parts for each accused  edit out what A said
about B and C and their involvement in the crime (can’t always be done)
there are risks obviously  over-editing = statement loses its original meaning and becomes a useless, misguided, or
even more harmful statement (too many gaps makes it look like a credibility issue because accused has huge gaps in
memory etc)
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bottom line: evidence doesn’t always have to be brought in as a whole – tril judge can make some calls and exclude
some stuff
Review of out of court statements of the accused
Out of court statement made by the accused  Crown chooses whether to bring the statement in or not
 Accused may choose not to testify, and that's fine
 Statements of accused are presumptively admissible  no hearsay test; but have to do probative, prejudicial
o Reliability is left to trier of fact (partial overhear and Mr Big confessions are exceptions)
o Because accused's statement being brought in, unique rules:
 Voluntariness is a big issue-- did the accused make statements to a police officer (and they knew it
was a police officer) -- important because of pressure issues and integrity of the state --> improper
means of getting accused to talk
 Factors looked at to determine voluntariness are found in Oickle
Exclusion of Evidence Under the Charter
Number one reason an accused statements don’t come in, is due to Charter violation that occurred during
the taking of that evidence
The various Charter sections:
S 10(b) of Charter
10 (b). Everyone has the right on arrest or detention to retain and instruct counsel without delay and
to be informed of that right; and
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when an accused comes under the custody of the state, and state is putting their power on them, have
certain rights and they need to be made aware of those rights (crucial time)
As soon as an accused is detained, have this right  doesn’t have to be arrested specifically, simply have to hold a
reasonable belief that they are under control of the officer (state) and do not have the option to leave
Number of duties triggered on behalf of police:
o Informational component: Have to make it clear to accused that have the right to a lawyer and if don’t
have one, to give them a number of an available lawyer whom accused can talk to
o Implementional component: if person wants to speak to a lawyer, have to make that happen/help
them get access to one within a reasonable time period
o Cannot ask questions of accused in the meantime while they’re waiting to speak to their lawyer
S 8 of Charter
8. Everyone has the right to be secure against unreasonable search or seizure.
Guarantees against unreasonable search and seizure
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Where reasonable expectation of privacy, state has to get special permission in the form of a search warrant
o Example: searching a person’s house, car
Search warrant: police has to go in front of a judge and show on reasonable grounds that accused committed
offence, and reasonable grounds that evidence will be found in that location
o Cannot simply be suspicious of the person and their activities
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Two ways police can violate s 8:
1. No warrant (by accident)
 Police didn’t realise they were on private property or searching someone’s property
2. Warrant granted but on unreasonable grounds
 Authorisation granted, but at the trial authorisation looked over and turns out it was given on grounds of
suspicion
So now what? :
Section 24(2) of the Charter
24 (2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a
manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall
be excluded if it is established that, having regard to all the circumstances, the admission of it in the
proceedings would bring the administration of justice into disrepute.
 judge has to decide whether to let the evidence in or not based on the question “what would be better
for the reputation of our justice system?”
Pre-Grant formula:
Categories of evidence
1. Conscriptive  100% inadmissible because fundamentally unfair
 Thought to be much more serious violation because helped to create the evidence
against yourself (conscripted against self by the State)
 Evidence didn’t exist until the statement was made (and statement made because of
State trickery)  evidence created through Charter violation
2. Non-Conscriptive  presumptively in, but balancing of factors
 Still a violation of the Charter, but less serious because the evidence always existed –
evidence not created through Charter violation
 Balancing: How serious was the violation?
But, frustrations using this test:
 One category doesn’t require any balancing, while the other does  not really in the spirit of 24(2)
 Automatic exclusions regarding one category is problematic: Definition of “conscriptive”  blood and
breath samples included if taken in violation of the Charter, immediately inadmissible but these types
of evidence highly reliable
 Reliability not playing a strong enough role
R. v. Grant (2009)
 Reliability has a role, but not the only factor  Respect for Charter rights has a role too; focus should be
what’s best for the justice system as a whole, not simply what’s best for the specific accused at hand
(bigger picture perspective informing the probative/prejudicial balance)
TEST FOR ADMITTING EVIDENCE OBTAINED UNDER CHARTER VIOLATION 24(2)
1. seriousness of the breach
a. regarding state conduct  how bad was it?
Technical breach (limited violation) – good faith/reasonable mistake – unreasonable mistake --- deliberate
violation
b. from perspective of accused person  what is right designed to protect and how extensive
was the violation from the accused perspective?
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2. reliability of the evidence  has the Charter breach tainted the reliability of the evidence?
o Statements can have reliability issues because of the potential pressure
Examples of evidence going through this balancing test:
1. Statements in violation of 10(b)
 Usually, won’t be admitted  presumptively inadmissible; right to not self-incriminate; sig violation from
both perspective of accused and of state
 Serious violations on the first two factors
2. Physical Evidence (gun, drugs)
Presumptively admissible because reliability on its side; Usual balancing from before, hasn’t really changed
Comes down to police conduct and how serious it was
3. Bodily Samples
 Biggest change from old system to new one
 Highly invasive way of obtaining evidence but highly reliable
o Can look at level of invasiveness: breath is pretty un-invasive for example and not a huge
violation
o In order to get this evidence inadmissible, prejudicial would have to be very high such as
evidence of serious state misconduct (to outweigh the reliability)
 Focus is on state conduct
Derivative evidence  viewed as extension of 10(b) violation
Real evidence that is derived from a Charter breach  don’t use the statement directly, but the evidence that
came out of it
 accused tells cops where the murder weapon hidden and the cops find it: want to use the weapon, not the
statement
 OLD TEST: if statement inadmissible, the weapon/physical evidence resulting from the statement should
also be inadmissible
o one exception to that: otherwise discoverable doctrine  evidence would have been found
anyway, simply found it sooner because of 10(b) violation; this would have to be proven
NEW TEST:
STAGE ONE: do 24(2) on the statement AND on the evidence derived from the statement (usually the
results are a mirror image, but derivative evidence usually a little more reliable)
1. seriousness of the breach
a. regarding state conduct  how bad was it?
b. from perspective of accused person  what is right designed to protect and how extensive
was the violation from the accused perspective?
2. reliability of the evidence  has the Charter breach tainted the reliability of the evidence?
STAGE TWO: otherwise discoverable
 if heavily tied to statement (because only could be discovered through statement) then
inadmissible, but if would have discovered the physical evidence anyway, severed from statement
and can be admitted on its own
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Privilege Against Self-Incrimination
Right to Silence
Principle against Self-Incrimination: s 7 Charter
 not only a right, but a principle of fundamental justice against self-incrimination guaranteed by s 7 of the Charter
o read into s 7 as POFJ
o has capacity to introduce new laws  foundation for pre-trial right to silence
 serves at least two key purposes:
o protects against unreliable confessions
o protects against abuses of power by the state
 does not provide absolute protection though because probative value may outweigh  residual protections are
specific, contextually-sensitive and require balancing process
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Not being forced to talk/participate in process  way of keeping power of the state limited
Strong incentives to not talk to State before know charges etc even if innocent statements
Have the right to remain silent and not answer questions  but Singh
Right to silence is part of voluntariness  common law Voluntariness Rule
Breach of right to silence as a distinct part of analysis  “added to” the voluntariness test (from Oickle)
Rule: cannot be forced to talk
Police Custody: pp. 847-860
R v Singh 2007
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Right to remain silent does not equal a right to not be spoken to by state authorities
Legitimate means of persuasion are permitted and police may persist with questioning despite accused/detainee’s
wish to remain silent (strong dissent)
o ignoring and proceeding will obvs raise the strong argument that anything obtained under such conditions
was not in fact voluntary
 number of times person says “no” is significant but not determinative/not enough and 5-6 hours of
interrogation seem to be reasonable
 if there is some implication that person has to talk/duty to talk, could be problematic (“I have to
have both sides of the story”)
 evidence that person wilting under the pressure, breaking down also problematic
have to tell people their 10(b) rights because a Charter right; but advisable to also remind the person about their
right to remain silent (even though not a specific Charter right)  where relationship more adversarial (focused
suspicion), even more important to notify person
who the cops are talking to (suspect/accused or witness) makes a difference regarding what the police
responsibilities are
once you speak to lawyer, cannot ask to again in the middle of your interrogation
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Out of Custody: pp. 507-514, 522-524
R v Turcotte 2005
BROAD READING OF RIGHT TO SILENCE
 s 7 right to silence based on confessions rule and privilege against self-incrimination
 so it would be unfair to then use that right to remain silent against an accused as an indicator of guilt
 BUT evidence of silence admissible in limited circumstances:
o Crown must establish real relevance and proper basis  there has to be a rational connection between
silence and guilt
o Evidence of silence used to assess credibility
o Defense raises an issue that renders silence relevant (ie emphasising accused’s cooperation with authorities)
o Where accused failed to disclose alibi in timely/adequate manner
 Silence in the face of police questioning will rarely be admissible as post offence conduct because rarely probative
of guilt  accused has the right to remain silent and exercising that right reveals nothing
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Common law right to silence always exists, including pre-arrest/detention, whether warned or not (doctrine of
waiver also applies)
Charter right to silence however is only triggered once the person is detained and the doctrine of waiver DOES
NOT apply
Technically, an adverse inference should not be made from trial silence however if facing prosecution (a mountain
of evidence), a passive, silent accused could face the possibility of conviction if choose not to answer to the case
(and mountain of evidence) before him/her
R v Prokofiew 2012
RIGHT TO SILENCE IS SUCH A SACRED RIGHT, EVEN CO-ACCUSED CANNOT COMMENT
 S 4(6) of CEA does not prohibit trial judges from affirming accused’s right to silence and judges would do well to
remind juries ; failure of accused to testify can’t be subject of comment of Crown at court
o Judge’s should not be commenting on the lack of answer from an accused in a way that draws negative
inferences, but can comment as a form of damage control (if co-accused went out of line and made
comments they weren’t supposed to)
 Accused’s silence is not evidence for anything, let alone guilt, and if Crown hasn’t proved their case BARD on
their own merit, juries cannot use silence of accused to give Crown’s case a boost
 but giving such instruction is ultimately at discretion of trial judge and doesn’t always have to be given in every
case
Statutory Obligations
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Outside of the accused, almost everyone is competent and compellable  can be forced to testify
No right to silence, can be compelled to talk in court (an accused cannot be compelled, ever)
But sometimes, witness may have to reveal some things in their testimony that can get them in trouble
(“I work at a grow up and that’s where I saw A shoot B”)
o If a witness thinks that what they say will be used against them, will probably not talk
o So in order to get at the truth, Crown/State should not be allowed to use previous in court
statements made by a witness in a new trial where the witness is now the accused, against them
S 4 Canada Evidence Act
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4. (1) Every person charged with an offence, and, except as otherwise provided in this section, the wife or
husband, as the case may be, of the person so charged, is a competent witness for the defence, whether the
person so charged is charged solely or jointly with any other person.
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Protects a person from being compelled to give evidence before a court
o Protection doesn’t apply to giving body samples, being photographed or fingerprinted
Anyone who chooses to become a witness for court (including accused) cannot refuse to answer questions posed
to the, even if they believe answers will incriminate them
o However, answers cannot be used against them later on in proceedings
o Exception is in cases where charged with perjury obviously
S 11(c) and 13 of Charter
11. Any person charged with an offence has the right
(c) not to be compelled to be a witness in proceedings against that person in respect of the offence
13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given
used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving
of contradictory evidence.
 when a witness testifies, can’t use that testimony against them as evidence later (exception is perjury (says
one thing as a witness and another thing as an accused) – bring in their testimony as evidence)
 cannot use their testimony to incriminate them
Justice Lamer: where accused takes the stand, can use prior testimony to help evaluate the credibility of their
current testimony (like the way you would bring in past criminal record), not for its truth
R v Nedelcu 2012
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S 13 doesn’t cover situations where accused people, on same indictment, have re-trial  can have their previous
testimony brought up on cross (because said one thing at one trial and another thing at another trial; voluntarily
testified) HOWEVER, if choose not to speak at second trial, cannot be brought up because breaching right to silence
– Riley/Henry
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Because a witness is compellable at trial, if they make any incriminating statements, s 13 protects them from
Crown using those statements against them in a later trial where witness is now the accused
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Testifying on innocuous manner differently at two trials can be brought in for credibility purposes (because doesn’t help Crown
anyway)
o Even slightly helping Crown prove one of the elements, not innocuous and cannot be brought in
Test for admissibility is the same as for collateral issues
o Not having memory of what happened can be brought in under credibility
o
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S 13 Charter protection can only be invoked where a party seeking to invoke it can first establish that they gave incriminating evidence under compulsion at a
prior proceeding
o
Incriminating evidence  evidence given by an accused at a prior proceeding that Crown could use at a subsequent proceeding to prove guilt
In dissent: Lebel J distinguishes between voluntary and compelled prior (now, “incriminating”) evidence and an accused who chooses to testify voluntarily
waives their Charter right to protection from self-incrimination in the future
o
Any other witness (other than accused) is statutorily compellable anyway
S 13 also applies to being compelled to testify in a civil trial
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Witnesses:
Application Under Section 83.28 of the Criminal Code
SRJ case  provincial statute compelling traders to talk
 In a civil society, can force people to talk for policy reasons, but Charter says (s 7) cannot have that used
against them in criminal trial– used s 13 framework
1. Have to have decent policy reason/regulatory purpose for making people talk
2. Can make them talk for civil regulatory purpose (and can be used against them in non-criminal
setting)
3. Protections:
a. Use Immunity
b. Derivative use
c. Constitutional exemption
If just making people talk with hope of them slipping up and giving something advantageous to a criminal
trial, then courts see through that and can’t do that
One exception for derivative evidence, as already discussed, is “otherwise discoverable”
Can force people to talk for public policy reasons as long as legislation gives use and derivative use
protections
Privilege Based on Confidential Relationships
APPLIES TO COMMUNICATIONS, NOT TO ACTUAL PHYSCIAL EVIDENCE – if get physical evidence, have to get
another lawyer to turn it in to police but physical evidence is not subject to privilege
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Search for truth is usually on the probative side but if prejudice too high, keeps evidence from getting in
o 24(2) good example of good evidence being inadmissible
o Voluntariness: another example of keeping reliable evidence out
o Abuse of Process : Mr Big confessions not allowing some good evidence in
These rules operate in opposition to the others – rather than searching for the truth, their aim is to
restrict it in the interests of the public and the operation of the justice system as a whole
o Want to protect certain societal relationships
Where there is a class privilege – presumption of inadmissibility
o Where there is no class privilege established, statements made are presumptively admissible
and decided on case-by-case basis
The first and most important criterion is that person confiding in another communicates in the
confidence that the communications will not be disclosed
Professional and evidentiary aspect
o Professional obligations to keep info confidential
o Cannot be called in as evidence because info is privileged
Hierarchy of Privilege
1. Class privilege – stronger; subject to a time exception
 3 types, and court has said no more categories
o Informer privilege (informs cops of crime to get them going and informant’s identity
is hidden)
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o Spousal privilege – spouses cannot be compelled to speak against each other;
legislation now coming in to change this so we aren’t dealing with it
 But s 4(3) of CEA  no spouse can be compelled to disclose any
communications made during the marriage (being able to communicate with
your spouse in confidence is a privilege that is protected)
 But can speak against them if want to, just can’t be compelled
o Solicitor-client – society simply couldn’t operate properly without this privilege
2. Case-by-case privilege – subject to broader exceptions; case v societal balancing
Class Privilege - Solicitor-Client
Section 4, CEA
Blood Tribe 2008
 solicitor-client privilege is a class privilege
o communications have to be made to a lawyer (who is subject to rules, a defined class of people
etc) for the purpose of obtaining legal advice
o communications on non-legal stuff is not legal advice and not privileged
 doesn’t have to be formal (signing of retainer cheque etc)
o there has to be an intention of confidentiality
o getting advice on how to break the law falls out of the scope of legal advice  not legal advice
but aiding and abetting
no pro/pre balancing – if factors met, communications are privileged
 only exception to solicitor-client privilege is when communications reveal themselves to be criminal or
show intention of further criminal activity
o otherwise, solicitor-client privilege is fundamental to proper functioning of our legal system since
the free flow of fitting legal advice is in the public interest
o the privilege belongs to the client not the lawyer getting advice on how to break the law falls out
of the scope of legal advice
Other Confidential Relationships
Case by case privilege  extra step taken where pre/pro balancing takes place
Want to give these relationships a chance to be protected under the law and given that privilege but have to go through
test first
R v Gruenke 1991
 generally, priest and penitent privilege is determined on case-by-case basis
Test
1. communications intended to be confidential and must originate in a confidential context
2. expectation of confidence must be essential to the relationship
3. community expectation of confidentiality/privilege for this relationship
4. degree of harm that would occur to this relationship must outweigh the benefit to society; look at
a. seriousness of matter/case
b. importance of trial
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The above applies for past crimes  if a person confides to a doctor or a lawyer or a priest or whatever that they
are going to commit a crime, then privilege doesn’t exist (look at exceptions)
Exceptions: pp. 1001-1017
Common to both:
INADVERTENT DISCLOSURE  accidently sending out info to other side should not override privilege
Airst  some flexibility/circumstances where if overly negligent, privilege doesn’t apply but really comes
down to evidence of an implicit waiver
PUBLIC SAFETY  can breach S-C privilege to avoid future harm to public
Smith: larger umbrella to S-C privilege than just client and lawyer; including other senior counsel for advice on
how to proceed assists in providing advice to client
 Person poses specific danger to public
 Imminent risk of serious harm or death to an identifiable group
 Easiest thing to do is to inform the police and have them deal with it
 Disclosure is supposed to be in the interests of public safety, but in this case, the info was used against him
in his trial (because out of court statement now that privilege stripped away)  dissent: should be doing
something in between
(1) clear risk of harm to identifiable person/group, (2) serious psychological/bodily harm or death, (3) imminent/urgent. Weight to
each factor is case-by-case. Limit information disclosed to that necessary to protect public safety for solicitor-client privilege.
Waiver  important to both class and case by case
Explicit: if client explicitly waives SCP, lawyer can go testify; privilege belongs to client, not to lawyer and client
can use it to help them if possible
 If charged with obstruction of justice  can use what advice lawyer gave you to defend yourself (after
privilege waived)
 If lawyer was incompetent  waive privilege to show advice given during these private talks
Implicit Waiver
 Doesn’t intend to waive privilege but take certain steps that open the door for waiving
 For example: as part of defending themselves, mention they met with lawyers etc  now the door opened
and Crown wants to cross those lawyers to see what exactly was said, in what context etc
Shirose: waiver of privilege when police used “legal advice” to prove their case, implying it was in their favour, so Defence has right
to see it. Not waived if just part of narrative testimony. Communications facilitating crimes are not privileged
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For abuse of process, has to be seriously bad conduct ; merely breaking the law is not enough
Merely stating that met with lawyers is not enough to be considered a waiver  but because Crown went
heavy on this info, inferring that the advice should be helpful to Crown’s overall case/using the content to
their benefit = opening of the door  Defense has right to see it now and see what was actually said
If using the advice of the lawyers to help your case, then bringing in the actual advice and its an example of
implicit waiver
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INNOCENCE AT STAKE
But what about situations where trying to protect yourself, frustrating someone else’s ability to defend
themselves and vice versa
One cost of privilege: will frustrate full answer in defense; may not be able to get at some info that might help
you because of SCP  get a fair trial, not the best trial
BUT in the face of glaring risk of wrongful conviction, get an exception so that accused can show their
innocence
1. Don’t get the actual info to help you make your arguments
2. Arguments come down to: I’m pretty much going to be (wrongfully) convicted if I can’t use the
privileged info which holds the key to my innocence
Innocence at stake  major exception for solicitor-client (applies to case-by-case but would pretty much pass
test because much more narrow than the 4th balancing step)
McClure:
Broad principles that should be met: test should be stringent; with core issues going to guilt of accused and genuine risk of wrongful
conviction ; LAST RESORT
Accused must prove (preconditions)
1. Info is not available from any other source
2. Unable to raise reasonable doubt in any other way
Test for Innocence at Stake:
Have to have some solid foundation that such info exists without actually having access to the info
1. accused must prove evidentiary basis that there is solicitor-client communication that could raise reasonable doubt about
their guilt (description of possible communication; pieced together from various sources)  if person carelessly blabbing
about what they’ve said to their lawyer, then can argue implicit waiver
2. TJ sees it, decides whether likely to raise RD
CONSIDER: CROWN/DEFENCE THEORY – RELEVANCE – PROB/PREJ – LIMITING INSTRUCTIONS/ALTERNATIVES
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