INTRODUCTION
RULES OF EVIDENCE GOVERN:
1. Generation and Collection of Evidence at the Investigation Stage
- K.G.B. Statement
2. Process at Trial Level
3. Issues of Admissibility
4. Evaluation of the evidence (Weight accorded to each piece of evidence)
- Circumstantial (series of bits of evidence) v. Direct Evidence (he did it))
5. Legal Burdens: Ultimate Burden of Proof & Evidentiary Burden
5 GOALS OF THE RULES OF EVIDENCE aka. TPPTP
Rules of evidence exist to govern the information that a court may consider in applying the substantive law.
1. Truth Seeking *Not the pre-eminent goal in every case
- R v Noel: two boys tried separate for murder > can the Crown cross examine the accused with his testimony
from his co-accused’s case? No. (limiting instruction wouldn’t be good enough & testimony would too highly
prejudice the accused)
- “Truth, like all good things, may be pursued too keenly, may cost too much”
- If truth seeking was the sole goal, many of the rules of evidence (ie. non-compellability of the accused)
would not exist.
2. Procedural/Trial Fairness
- Right to Remain silent – Police cannot force accused to talk, nor the Crown force the accused to testify
o The non-testimony of the accused (or spouse) cannot be information raised by the Crown.
o The greatest protection an accused has is not being competent to be called by the Crown
- Evidence is inadmissible IF prejudicial > probative:
o The Crown evidence must be more prejudicial than probative to be excluded -//- Defence:
prejudicial effect on the Crowns case must substantially outweigh the probative effect.
- the accused has a right to a fair trial, though not a perfect trial. For an appeal to have grounds, an error must
have had a substantial impact on the case and the verdict.
3. Protection of the Parties/Participants
- Presumption of innocence (s. 11(d))
- Protection for accused called to testify against co-accused: use immunity and derivative use immunity
- Rape shield provisions and non disclosure of 3rd party records protect victims in sex assault cases
- Protection for the informant: identity not revealed, unless innocence at stake
4. Trial Efficiency
- Collateral facts = facts which are not directly relevant to the case. You can cross examine regarding collateral
fact matters, but you’re stuck with the answers given i.e. cannot contradict the witness by bringing in or
calling other evidence
5. Public Confidence
- Blackstone: "it's better that 10 guilty go free, than one innocent suffer" Price paid for having rules of
evidence is that the guilty can actually go free; but, the rules are not designed to convict the guilty, the rules
are designed to protect the innocent
- Wrongfully accused & convicted ie. Milgaard. These cases reinforce the role that laws of evidence play in *1)
protecting the rights of the accused and *2) ensuring trial fairness in high profile cases
- Sheppard: Judges are obliged to give reasons for their judgements (also important for appeal purposes)
Reasons for wrongful convictions:
1) Public pressure 2) Unpopular defendant 3) Noble Cause Corruption - “i know he is guilty” therefore the ends justify
the means 4) Malice (malicious prosecution like R v Dix) 5) Conversion of adversarial process into a game.
Immediate Causes: Eye-witness misidentification, Police mishandling of the investigation, Inadequate disclosure by the
Crown, Criminals as witnesses (informants, the unsavoury witness etc), False confessions, Misleading circumstantial
evidence, Unreliable scientific evidence, inadequate defence work
Mezzo- A fleeting glace will not automatically create a non-suit; however, strong warning to jury about lack of reliability
Hibert- Standing alone, Dock ID cannot ground a conviction (ie. need line-up, surveillance, etc)
Adversary System
- Counsel bound by Code of Professional Conduct
- Judge takes no part in the proceeding and leaves large discretion to counsel to conduct the matter, subject to their
overriding supervisory jurisdiction.
- Judge decides on matters of admissibility of evidence (a matter of law), trier of fact determines weight that will be
given to evidence once it is admitted.
- Counsel restricted in terms of questions they can ask in their Direct Exam, when examining the opponent during Cross
they are given broad latitude, and may ask about matters directly in issue, matters affecting credibility and collateral
matters.
- Physical evidence is often presented so that the trier of fact can actually examine these items and left for their
consideration at the end of the case.
- admission of evidence is a ruling of fact, not law.. so high deference is given to trial judge. Appeal can only overturn if a
palpable and overriding error has occurred.
- if a party objects and the judge made an incorrect decision regarding an evidentiary rule it constitutes an error of law
(less deference by CofA). But as per s.686 of the Code: the court can reject an appeal with merit where the verdict would
necessarily have been the same even if such an error never occurred (the error of law did not effect the verdict)
- a failure to object will not always be fatal; especially if it was an important error. The judge has an obligation of getting
the rules of evidence correct. It will be fatal if the court concludes that not objecting was tactical or a conscious decision
or if he sought to use to inadmissible evidence to his advantage
CIVIL AND CRIMINAL PROCEEDINGS
Civil
P and D; Allowed multiple P's
Parties
and multiple D's and also, 3rd,
4th, etc. 5th parties
Pleadings: very specific
Burden of Proof BOP In the past, there was a
sliding scale e.g. actions for
criminal misconduct increases
standard. FH v. McDougall
There is only 1 standard in
civil cases
Disclosure
All parties are called to make
full disclosure
Competence
Both parties are Competent
&
and Compellable
Compellability
Prior to Trial
Examination for discovery:
- Get 'admissions' , 'read in'
from the discovery in the trial
- P gets to examine the D (and
VV)
- Refusal to participate in a
discovery results in having
your pleadings struck
Criminal
Crown and Accused
Pleadings/Indictment: very broad
Beyond a reasonable doubt (BARD)
Starr: BARD is not certainty, but it is much closer to that than it is
to BOP.
Only Crown bears a disclosure burden (Stinchcombe 1991);
accused has burden only in 3 circumstances (discussed later)
Accused is incompetent and non-compellable by the Crown
Preliminary Inquiry:
Pre-trial hearing, at which transcript is generated which you can
use later, e.g. if witness later changes story/recants
Crown must produce "sufficient evidence" to show that there is
some evidence on which a R jury could convict; then committal for
trial ordered. Accused can call evidence, but need not to. –but may
want to preserve it for the record (ie. in case of death, MH) s. 715
Accused must decide: 1) Whether to plead guilty 2) Whether to
testify
Turcotte: no inference can arise from an accused’s choice to remain silent.
- police officer must Charter and Caution the accused before any questioning occurs
Singh: must be informed of the 10(b) right and given reasonable opportunity to contact counsel. The police do not need
to hold off questioning if the accused cannot get a hold of one.
Lyttle: The right to cross examine is a broad right (not limited to matters in Direct Exam, can discuss collateral facts)
Multiple Criminal Parties
- Crown has discretion on how to indict them – order of the accused on the indictment is the order that they will call
evidence. If A chooses not to testify, B suddenly can testify and blame it all on A, who then cannot get up and refute it.
*Indict the weak link last.
- If B gave statement to the police, it is only admissible against the maker (it has no impact against A) (limiting instruction
will be given) > the only way to avoid this prejudice is to separate the accused and try them separate. (apply for
severance). But if you get severance, A & B become compellable against each other.
- If A testifies… B’s lawyer can cross and then Crown crosses last (bats clean-up)
- If the accused plans on testifying they should do it first thing. If the accused testified last he could hear all the other
evidence and adjust his story accordingly (and the Crown would go to town on that point)
Disclosure
The Crown bears the obligation to disclose its case in total before the accused is called upon to either elect the mode of
trial or plead (Stinchcombe (1991) SCC)
- Accused does not have any obligation to disclose, except if:
1. ALIBI is advanced (disclosure at first reasonable opportunity)
2. EXPERT evidence is called (CC 657.3(3))
o Crown: must disclose the CV 30 days prior to trial and provide his report prior to trial
o D: must disclose the CV 30 days prior to trial; provide report only before the close of the C’s case.
3. CHARTER relief is being sought by the accused
o Notice of the constitutional remedy being sought must be given (R. v. Dwernychuk)
o 14 days prior to trial, notice must outline the Charter breach, evidence supporting it, legal
authorities, and remedies being sought.
4? (Area in Flux) – R v Taylor: an adverse inference may be drawn from a failure to disclose to police.
EVOLVING REFORM OF CL RULES
Ares v. Venner 1970: skier in jasper loses leg, nurses notes; major shift in hearsay as 3rd party records can be tendered
for the truth of their contents when “the record is made in the normal and ordinary course of business and there is a
duty to record” (ie. nurses charts)
R. v. Khan 1990: Dr. sticks penis in little girl’s mouth; allowed hearsay as reliable - principled approach to hearsay (twin
criteria of necessity and reliability)
R. v. KGB 1993: 3 teen boys recant statements; rejected previous rule of not allowing unadopted prior inconsistent
statements except for credibility; allowed unadopted prior statement for its truth as it met threshold reliability (oath,
warning of consequence of lying, videotaped) – still must meet the reliability and necessity test
R. v. Starr 2000: “autopac scam case”; traditional hearsay rule prima facie admissible; affirms principled approach –
even traditional exceptions must meet the twin criteria of necessity and reliability
ADMISSIBILITY
• Admissibility is a Question of Law for the Judge to decide. Weight of Admissible evidence can be considered by the
TOF. Even if a party does not object, judge has independent obligation to ensure that only admissible evidence is given.
• Voir Dire: trier of law decides admissibility in the absence of a jury if (the judge first needs to hear the evidence before
deciding if it is admissible or not, then jury leaves and there is a trial within a trial). Upon completion of the vior dire the
2 parties can agree to have it made a part of the trial proper. If one party does not agree, the evidence will have to be
heard again in the trial proper for the jury.
Inclusionary Approach R. v. Corbett: Generally, evidence is admissible, and courts should err on the side on inclusion
rather than exclusion. Basic principle is to permit into evidence everything logically probative of some fact, subject to
exclusions/exceptions
5 FACTORS GOVERNING ADMISSIBILITY
R-E-Ch-R
a.i.1. Is the evidence RELEVANT & MATERIAL (LOGICALLY RELEVANT)?
Logical Relevance: Does this piece of evidence tend to prove or disprove a matter that is in issue between
the parties? (does it have probative value with respect to a particular matter)
- Material evidence is evidence directed at a matter at issue in the case (contested issue)
- R v Arp: Only required to have some relevance, not real probative value; as long as it is in some way relevant
it is admissible
- ie. provocation in an assault case > why he struck the victim is relevant, but not material as provocation is
not a defence for assault, only murder (not directed at a matter in issue here, therefore not admissible)
-
a.i.2. Is the evidence barred by an EXCLUSIONARY RULE?
- Traditional rules e.g. character, opinion, hearsay; or excluded by policy e.g., grounds that it is privileged or
self-incriminating?
a.i.3. Is the evidence to be excluded on the basis it offends CHARTER rights?
If 1) evidence obtained in contravention of a Charter protected right and 2) admission of that evidence could
bring the administration of justice into disrepute, Judge is obliged to exclude it. 24(2) remedy. (R. v. Collins)
- An accused 1) must outline which specific provision is breached 2) link between the breach and the evidence
obtained & 3) establish that the admission of the evidence COULD bring the admin of justice into disrepute
- If you satisfy those criteria on a BoP the court is obliged to exclude the evidence under 24(2)
-
a.i.4. Is the evidence LEGALLY RELEVANT? (R. v. Mohan)
- Evidence is prima facie admissible if related to a fact in issue in a case but that does not end the inquiry, it
simply determines the logical relevance. Evidence may be excluded even if highly probative and is
conclusive of the issue if it is not “legally relevant”
- Must take a further inquiry: “COST BENEFIT ANALYSIS”: evidence should be excluded if:
1) Prejudicial effect > the probative value (Prejudicial effect: inflame jury or distort truth-seeking process)
2) Too time consuming in relation to its value
3) Misleading (effect on the trier of fact is out of proportion to its reliability)
a.i.5. DEFENCE EVIDENCE
- Higher threshold (for defence evidence to be excluded, prejudicial effect on the Crown’s case must
substantially outweigh the probative value)
- But there are obstacles in trying to have the following areas of evidence admitted: [1] rape shield [2] 3rd
party records in non-sexual cases O’Conner [3] 3rd party records in sexual assault cases
WEIGHT
TOF determines what weight is given to a particular piece of evidence
BARD does not attach to each individual piece of evidence; the evidence as a whole is examined collectively at the end
of a case to determine if the standard has been met – cumulative evidence (R v. Morin)
TYPES OF EVIDENCE
DIRECT EVDIDENCE – Evidence of an event about which the W testifies from his own observations; Subject to frailties:
- 1) Testimonial Factors in determining reliability (accuracy) & credibility (honesty): 1) ability to observe
events 2) ability to recall past events 3) how accurate does the witnesses use language (how careful/precise
is testimony) 4) what background does the witnesses have (experiential capacity) 5) honesty/integrity
- 2) Credibility Cases
o
R. v. DW: In a case where credibility is important, Judge must instruct the jury that RD applies to
that issue. Trial judge should instruct the jury that they need not firmly disbelieve or believe any
witness or set of witnesses. Specifically, he should instruct the jury that:
1. If you believe the accused, you must acquit.
2. If you do not believe the accused, but are left in a RD by it, you must acquit
3. Even if you are not left in doubt by the accused, you must ask, on the basis of the rest of the
evidence, whether you are convinced BARD by the evidence of the guilt of the accused (is there RD)
- R v Chalice: if you don’t know who to believe you must acquit (tie goes to the accused)
CIRCUMSTANTIAL – Requires drawing of an inference from 1+ pieces of evidence; (A piece of evidence that does not
directly prove a case, but when joined together in a trial we are driven to a particular conclusion or inference)
- Can be more persuasive than direct evidence because direct evidence relies on the credibility of the W
(“men lie, circumstances do not”)
- Rule in HODGE’S Case To Convict on Circumstantial evidence, the jury must be told that the evidence
o [1] Must not only be consistent with a conclusion of conviction, but
o [2] Must be inconsistent with any other rational or reasonable conclusion
Only applies to actus reus, but not mens rea.
- R v Griffin (2009) – rule of Hodge’s Case need not be given verbatim (only need convey the idea) >> but
generally as creatures of habit we still use the wording.
SPECIFIC RULES
Statements made to persons in authority – in a voir dire, Crown must proves 3 things BARD (Oickle):
1. The statement was given freely or voluntarily (not induced by threats or promises)
2. The statement is a product of an operating mind (e.g. not drunk or injured or MH)
3. The statement is not the result of an oppressive set of circumstances (awake for 30 hours, badgering)
> If those things are proven the defence may attempt to exclude the statement based on a Charter
breach (ie. 10(b) right to counsel) and the admission of such evidence could bring the admin of justice
into disrepute  accused bears onus on BoP.
> the statement must be a result of the specific Charter breach (ie. statement was a result of the lack of
counsel)
> one must be informed if jeopardy changes (attempt murder becomes murder when victim dies) – must
inform you of right to counsel again.
- Also, no police trickery (to be trickery it must shock society e.g. , pretending to be priest)
- Must be a proper record of the statement (video or audio, not simply writing it down)
- Undercover officer is not a person in authority
TYPES OF ADMISSIBILITY
[1] CONDITIONAL ADMISSIBILITY
- Evidence whose relevancy will become clear when further evidence has been called
o If not established as relevant later, although earlier ruled as admissible, evidence will be ruled
inadmissible and the jury told to ignore it.
- Ruled admissible, but then may not be tendered “Crown putting the defence on notice” – Crown gets ruling
on admissibility of the evidence of a pre-trial statement made by the accused (to have to tender for
purposes of cross if the accused attempts to lie on the stand). Must be done before closing of Crown case.
[2] LIMITED/ RESTRICTED ADMISSIBILITY
- Evidence can be admitted for 1 purpose but not for another purpose. A jury will be given a limiting
instruction as to the uses that they can make of the evidence.
- Ie. Confession of A is admissible against him (but not against B & C who he mentions in his confession)
- E.g. s.12 of the Canada Evidence Act. If accused fails a Corbett Motion, and elects to testify as a witness, he
can be cross-examined on his prior criminal record, but jury must be told that this evidence is only
admissible on the issue of credibility, but cannot be used to infer that he is the type of man to have
committed this crime. If denying previous criminal acts – on cross examining counsel can prove the acts.
REVISITING EVIDINTIARY RULINGS
- If a judge rules a certain way with respect to a question of admissibility, the decision is not static and could
change during the course of the proceeding as other evidence unfolds (Underwood – Corbett motion
granted on condition that D not overplay their hand. .'. judge could revisit ruling later and permit crossing on
prior criminal record)
REMEDY FOR HEARING INADMISSIBLE EVIDENCE
- Judge alone: Judge will disabuse their mind of the inadmissible evidence (order a mis-trial if
cannot)
- Jury: 1) Judge must provide a jury charge during & at end (or middle as will) of trial directing the jury
to disabuse their minds of the evidence OR 2) Order a mis-trial if the prejudicial effect is too great
(extreme remedy)
STANDARDS OF PROOF
3 standards of Proof in a Criminal Case
1. BARD (Crown only)
2. BOP (Accused required to prove Charter breach or Defence NCR or rebut care & control)
3. Raise RD/Evidence to the Contrary (Accused) – in cases of basic fact presumptions the burden is on the accused
to raise a reasonable doubt
[1] LEGAL BURDEN (Primary + ultimate burden Crown/Plaintiff must meet to have successful case) [Fixed standard for
both]
Criminal Case = BARD
- R. v. Lifchus (attempt to define BARD) BARD is not an "ordinary concept", nor is it "moral certainty"; based
on reason and common sense; must be based on presence or absence of evidence
- R. v. Starr "Not absolute certainty, but BARD falls much closer to absolute certainty than to BOP"
- Jury must be told that the standard is vitally important because it is linked to the presumption of innocence
(Woolmington).
Civil Case = BOP
- FH v. McDougall There is no sliding standard in a civil case; if is a fixed standard; only one standard
regardless of seriousness of allegation - Whether more likely than not that even occurred (BOP)
1.
2.
[2] EVIDENTIARY BURDEN (Secondary burden, burden of adducing evidence, passing the judge)
- "is there enough evidence to leave a particular issue for the trier of fact's ultimate consideration"?
- Question of LAW that is assessed at two different points during trial:
Close of Crowns/P's Case
o At close, the TOL decides: is there enough evidence to warrant case going further?
o Shephard (non-suit test) "is there evidence upon which a properly instructed jury, acting judiciously,
COULD convict?" (not onerous) // test as for a preliminary inquiry. If Yes – case go on; If No - Jury:
Directed Verdict; Judge: Non Suit
o R v Kreiger: cannot have a directed conviction, only directed acquittal
Close of Entire Case
o For a defence to be left with a trier of fact, D must establish an “air of reality” to it (not onerous)
R. v. Fontaine: Defence must be put into play if a properly instructed jury could R, on account of
the evidence, find that the defence exists
 Judge should NOT weigh the evidence when deciding whether there is an Air of Reality;
should assume truth of evidence, leaving issues of reliability/ credibility/ weight for the
TOF
R. v. Cinous: There must be evidence on each element of the defence such that a properly
instructed jury acting R could acquit;
R. v. Kong: If a defence passes an evidentiary burden, and puts the defence into play, the jury is
obliged to consider defence and Crown must disprove defence BARD (unless reverse onus
defence like s.16 or automatism)
a.
a.
SHIFTING BURDEN
1.
Evidentiary burdencan shift to Defence in one of two ways:
Tactical
o Accused is not compelled or obliged to call evidence, but should practically since he runs the risk of
conviction (unless you have a non-suit it is tactically smart to lead evidence).
Legal
1) Shifting Legal Burden due to Basic Fact Presumption
o Accused obliged to rebut a basic fact presumption that mandates a finding of guilt (ie. B&E with intent)
Evidence may be in the Crown’s case; if not, accused may need to call new evidence
- Proudlock: with B&E intent will be presumed in the absence of evidence to the contrary (burden of accused
to create a RD about the presumed fact—ie. sleeping in a building when -40 > the need of shelter would be
evidence to create RD about the presumption in B&E with intent to commit
o If the evidence of the accused is not accepted by the TOF, then it doesn’t raise a RD and the
presumption stands.
-
2) Shifting Legal Burden requiring BoP
Look at section to see if it requires accused to "prove" or "establish" something. If so, this means accused
has a burden of proof, on BoP, and that he can be convicted even if there is a RD
i) Insanity Defence (accused bears the legal burden of establishing the defence, on BoP) [Chaulk]
ii) Care/Control of Motor Vehicle (accused in driver's seat while under the influence, is deemed in care or
control, unless he establishes on BoP that he was not in car for the purpose of operating the car) [Whyte]
JUDICIAL DISCRETION TO EXCLUDE
R. v. Mohan Even without Charter s. 24(2) and rules of exclusion, there is a Common Law discretion of the judge to
exclude otherwise relevant evidence where, in weighing the evidence, Judge should exclude evidence on the basis of
COST BENEFIT:
Prejudicial Effect > its Probative Value
- Probative Value – reliability of the evidence and Strength of the inferences drawn from it.
- Prejudicial effect – Something that will potentially distort and distract or lead the trier of fact in the wrong
direction: 1) Practicality of presentation of evidence 2) Fairness to witnesses and parties 3) Distorting effect
of the evidence on the case as a whole 4) Potential to confuse the trier or fact 5) Time Consuming
R. Seaboyer & Game [1991] (Rejected the restrictive test in Wray): judge has a discretion to exclude if the prejudicial
effect outweighs the probative value (judge holds strong discretion to exclude at CL).
R. v. Shearing [2002] Complainant kept a diary during the time period in which she complained of sex assault from Dad;
it had no references to sexual assault in it; accused got a hold of her diary;
- D could cross examine absence of sexual entries in the diary because nature of the diary did not raise privacy or other
concerns of such importance as to substantially outweigh the accused's right to a fair trial (the diary was not considered
3rd party records under O’Connor test as it was already in the possession of the accused)
Ratio: Defence evidence will be excluded only where the prejudicial effect of the evidence substantially outweighs its
probative value (relates to s. 650 and accused’s right to make full answer in defence)
R. v. Harrer: change of type of investigation / change in jeopardy requires the police to remind the accused of their
rights, and right to contact lawyer
- While there is a Common Law power to exclude, it has been constitutionalized in the POFJ and right to a fair trial under
ss. 7 and 11(d) of the Charter.
R. v. Buhay 2003 Security guards for Greyhound searched a locker and found weed; put it back and called the police;
police seized the weed without warrant; evidence was excluded because there was privacy breach s.8 under the Charter.
But noted in obiter that:
Even where there is no Charter breach, judges can exclude evidence by way of common law, where the evidence
would lead to unfairness or where its prejudicial effect outweighs probative value
CHARTER REVOLUTION
2 remedial provisions for a Charter breach:
s.24(1) Right to ask for anything e.g. damages, costs, lesser punishment (The power to exclude is also under this branch)
s.24(2) Evidence obtained as a result of a breached Charter right shall be excluded (must be proven by D on BoP .. its
admission could bring the admin of justice into disrepute)
S. 24(2): court has a broad power to exclude if a Charter right has been breached:
S.7 Life, liberty, security of person, POFJ
S.8 Unreasonable search/seizure
S.9 Arbitrary detention or imprisonment (but police have right to brief investigative detention)
S.10a Informed promptly of the reasons, to instruct counsel, to have the validity of the detention determined
S.10b Reasonable opportunity to retain counsel; cannot illicit evidence until then if he does want counsel
S. 11 c) Non-compellability of accused witness d) Right to be presumed innocent until proven guilty
S. 13 when a witness testifies to incriminating evidence against themselves it cannot be used as evidence in
subsequent proceedings
S. 14 right to an interpreter
R. v. Grant (New approach to 24(2) & derivative evidence)
Uniform police observe black accused "nervous"; approach accused, tell him to keep his hands in front of him and
surround him; search him for "officer safety"; he tells the police he has weed and gun.
Held: Though he was improperly detained, evidence was admitted because it wasn't that serious of a breach.
Outlines the new test for exclusion under 24(2):
1. Seriousness of the breach:
• is the conduct of the state serious enough that the court must dissociate themselves from it by excluding the
evidence linked to it?
2. Impact of the breach on the accused:
• whether evidence is conscriptive (emanates from the accused) or not remains a factor, but it is no longer
determinative as in Stillman – if conscriptive, more likely to have greater impact on accused.
• the greater the impact on the accused’s protected interests, the more likely that allowing the evidence would
show the public that the interest/Charter Right is not important
3. Society’s Interest in Adjudication:
• an accused should not be allowed to escape because of mere technical breach – the objective of pursuing
truth is important and society favours inclusion over exclusion (but it does not trump other factors).
• what impact would excluding the evidence have on the admin of justice? (ie. bring it into disrepute)
Derivative Evidence:
• Derivative Evidence: evidence derived from a statement of the accused (ie. I have a gun on me OR he tells you where
the body is burried). If the statement was made while a violation of Charter Rights existed the inclusion of that evidence
will be questioned.
• idea of discoverability: evidence that was discoverable outside of/ if not for, the accused’s statement has less of an
impact on the accused’s interest in self-incrimination than non-discoverable evidence gained from the accused during a
violation of their rights.
• Where it's established that the evidence would have been discovered in any event or discovery was inevitable, then it
is discoverable evidence and will not be excluded under 24(2).
• Most derivative evidence is real/physical evidence and its reliability is not in doubt. Thus, the public interest in having a
trail on its merits will usually favour its admission.
• Trial judges should be careful; however, as they don’t want to encourage police to obtain Charter violating statements
in order to find evidence derived from it (that would then be admissible)
R. v. Mann: approved of brief investigative detention where there are reasonable grounds for the police to detain (short
of R and P grounds to arrest, but enough R grounds to detain)
R. v. Suberu 2009 In an investigative detention, s.10 rights arise as soon as you are detained (briefly entitled to conduct a
prelim investigative questioning – question bystanders - before a detention occurs)
R. v. Harrison 2009 Police began pulling car over in ON for not having a front plate, only then realizing AB car does not
require front plate. Officer continues traffic stop without grounds & searches car in bad faith and finds 4 million of coke.
- allowing the serious nature of the offence and the reliability of the evidence found to overwhelm the 24(2) analysis
would deprive the accused who is charged with a serious crime of the protections of Charter Rights (effectively declaring
the Charter is meaningless and in the admin of justice the ‘ends justify the means’)
- to allow the evidence in this case would bring the admin of justice into disrepute
R. v. Shepherd 2009 Police officer observed accused's vehicle fail to stop for stop sign while travelling in excess of speed
limit; while ticketing accused for failing to stop, officer noticed accused illustrated indicia of impairment ; breath sample
showed drunk.
Held: There was R&P grounds to demand a sample.
- there need not be a prima facie case before undertaking investigation (only need evidence of R&P grounds)
In the context of the Charter, there is a broad discretion of the judge to exclude:
Charter has excluded highly probative evidence: Hebert UC police officer in the cell of the accused obtains confession excluded as a breach of s. 7 (privilege against self-incrimination); Feeney Police entered trailer without a warrant.
Excluded bloody shirt and inculpatory statements as breach of s. 8 and 10(b); Tessling: infrared camera to detect heat
emissions from house with weed operation: not excluded because not R expectation to enjoy privacy in pattern of heat
distribution
R. v. Potvin (re s.715 CC): A witness's evidence given at a preliminary inquiry is allowed to be read in as long as the
opposing party had the right to cross examine the witness, and the witness 1) has died 2) has become insane, 3) is too ill
4) is absent in Canada (subpoena only valid within Canada) 4) refuses to testify
- Even if s.715 is complied with, there still exists a discretion enjoyed by the judge to exclude as there may be
circumstances in which it would be unfair to allow the resort s. 715 (particularly prejudicial or unfairly obtained).
Thus, discretion makes the provision Charter Compliant.
FACTORS:
(a) Was defence given opportunity to cross-examine witness at preliminary inquiry (even if he didn’t?
(b) Did defence only engage in limited cross-examination of witness in anticipation of full cross-examination at trial
while Crown withheld info that witness would not be available at trial?
(c) Was defence not given full disclosure at preliminary inquiry & thus cross-examined witness with incomplete info?
(d) Is this an “oath against” case: basically complainant’s word against AC’s word? Then complainant’s preliminary
inquiry testimony should not be admitted without finder of fact being able to hear complainant’s testimony at trail &
assess her credibility
R v Hawkins & Moran (unit 5) (also a s. 715 case): Hawkins (police), marries the witness so she is rendered
non-compellable. She gave evidence at the prelim. The Crown sought to read in her evidence from prelim at trial.
R. v. LDO s.715.1 CC If a victim or witness under the age of 18 (not sex offence specific) testifies on a video-recording,
made within a R time after the alleged offence, the tape is admissible if the V or W adopts the video recording on the
stand unless the judge opines that admission would interfere with the proper administration of justice.
 LDO decided that S.715.1 does not violate s. 7 or 11(d) of the Charter because the judge retains a discretion to
exclude all or part of the statement even if statutory requirements are met.
 Factors: e.g. statement itself was derived from leading questions, the interview was not fairly conducted
 V or W is available for cross exam on the trial date.
 Crown can also ask questions in addition to their statement during direct exam.
S.715.2 CC If a victim or witness is able to testify but may have some difficulty doing so because of mental or physical
disability, and testifies on a video-recording, made within a R time after the alleged offence, the tape is admissible if the
V/W adopts the contents of the video on the stand unless the judge opines that admission would interfere with the
proper administration of justice.
R. v. Corbett (see s.12 CEA) A witness may be questioned re: prior criminal convictions, but there is a judicial discretion
to exclude all or part evidence of prior criminal history. Defence can make a Corbett Motion at the end of the Crown’s
case in the absence of the jury in an attempt to have the record restricted for purposes of cross
- Corbett Application Factors:
.1. Nature of the convictions
Does the offence involves credibility or is it something like impaired driving (relevance)
The more similar the past conviction to the present charge the greater the prejudice and the
more likely it is to be excluded
.2. Proximity in time are the convictions (the more remote/distant, more likely to be excluded)
.3. Trial Fairness/ Deliberate Attack on the crown’s witnesses
To exclude the accused’s record would have created an unfair unbalance against the Crown.
- If Corbett motion fails you can cross on the record (only on the fact that the convictions exist.. not their circs)
-
R. v. Underwood Accused is told BEFORE entering the box whether his Corbett application will succeed. If the
defence goes to far in suggesting that the person is of good character the Corbett ruling can be revisited and
overturned.
CHARACTER EVIDENCE
RULE AGAINST CHARACTER EVIDENCE: Any proof presented to establish the personality, psychological state, attitude, or
general capacity of an individual to engage in particular behaviour is not admissible
- Evidence that accused engaged in discreditable/criminal acts/is of a discreditable character is presumptively
inadmissible.
- Reasons to prohibit (1) Highly prejudicial (2) time consuming (3) can distract the TOF from the real issue (the
particular offence in the trial) (4) Lacking relevance (does not touch on anything directly in issue)
o Prejudicial because it may lead to the possibility that an accused may be convicted because of his
propensity to commit a particular type of crime (He is the "type of person" likely to have committed the
crime; he is a "bad" man deserving of punishment) and not because of the strength of the Crown’s case
in this particular matter.
Discreditable character should not ease the burden that is on the Crown–Handy
The Prohibited Inference: R. v. G(S.G.): Crown cannot present character evidence which shows only that the accused is
the type of person likely to have committed the offence. Mandatory Jury Direction: do not use similar fact evidence to
reason from general disposition to guilty
Exceptions to the Character Evidence Rule
1. Similar Fact Exception
2. Accused injects CE
3. 3rd Party witness
4. Sentencing (dangerous offender hearing - Proof of aggravating facts must be proven BARD)
5. Defamation Case (civil)
SIMILAR FACT Evidence Exception
- Character has not been infused by the A, but Crown wants to lead SFE. Arises from the difference b/t general
propensity evidence (person likely guilty because of history or the type of person to commit the crime) and specific fact
evidence
- Presumptively inadmissible, unless probative > prejudice (this is a strict test)
- Cannot be about a matter that is already prosecuted where accused found not guilty (Charter 11(h) but there may be
times where a particular fact from an acquittal case may constitute specific evidence e.g. hostility towards someone
DEVELOPMENT OF THE SFE
Makin and Makin "Baby Farming Case" Crown able to lead evidence of the previous 12 dead babies found on their lands
for purpose to show that it was unlikely accidental death.
• Propensity evidence cannot be used to show that he is the type of man to commit such an offence (forbidden
inference), but it can be used if it is relevant to an ongoing issue in the current matter:
• Evidence showing similar facts is not automatically admissible, it must be relevant to an issue before the jury:
1.
(a) if it bears upon question of whether alleged acts were designed or accidentalapplies here
2.
(b) to rebut another defence that would otherwise open to ACCUSED applies here
R. v. Straffen “the body on the moor case” Mentally challenged sexual deviant. Confessed to 2 previous killings. He
escapes from a mental institution. A new body is found the next day strangled like his previous victims. Crown led
evidence of past killings to establish ident.
- Abnormal Propensity evidence can be used to prove identity (signature, calling card, ritual etc – for it to be coincidence
defies belief)
Boardman “The Schoolmaster case” Crown able to lead evidence about another boy in a boarding school that was asked
by the teacher to be sexual. Evidence from 1 count cannot be used for the other count unless the evidence falls into a
SFE. (you cannot infer the commission of the second crime because he committed the first one - only if the similar fact
exception applies – calling card, could rebut defence etc) – if that occurs it is admissible (R v Arp)
Types of issues that can be advanced through admission of similar fact evidence
A) Discreditable Conduct of an Accused that is directly relevant
- ‘evidence which is directly relevant to the Crown’s theory of the case is admissible even though it may also
demonstrate the bad character of the accused, as long as it probative value outweighs it prejudicial effect. (ie. adduce
evidence that the accused has a drug habit as a motive for the robbery) OR (ie. gang associations are adduced when the
Crown is proceeding with a charge of organized crime, which requires gang-relations to be established)
B) Discreditable Conduct Establishing mens rea
- Prior discreditable conduct can have probative value in demonstrating the mental state of the accused, be it dealing
with knowledge or intent. (ie. evidence of a Dr.’s propensity to touch sexually his previous patients helps to rebut the
claim that the touching in the present case was accidental).
C) Discreditable Conduct Establishing actus reus
- ie. Previous murder convictions in the same fashion (similar facts) tend to prove that the death before the court was in
fact, murder, not naturally caused.
D) Discreditable Conduct and the Credibility of Complainants
- similarities of independent allegations by 2 or more person can reach the point where it would defy common sense to
think that such similarities are merely coincidence. Evidence of these independent allegations can be used to support
the credibility of the complainant who is making the allegation.
- if the other complainants where exposed to the original complaint (ie. One friend confides in 4 others) then the
inference to bolster credibility (due to unlikelihood of coincidence between stories) will be undermined.
E) Discreditable Conduct Relating to the Alleged Victim
- The Crown can adduce evidence of the violent or abusive nature of the prior relationship between the accused and an
alleged victim.
- the evidence of the nature of a couples relationship provides context that may be important to an accurate
interpretation of the event.
- this type of evidence is still presumably inadmissible and is allowed only where the court concludes that the probative
value of the evidence in relation to an issue, identified by the Crown, outweighs it’s prejudice.
R.V.HANDY 2002
Facts: Accused charged with forcing anal sex on the complainant. Crown wanted to introduce SFE that there were 7
similar incidents involving his ex-wife in order to show the double inference: 1) He had a propensity to inflict painful sex
like anal 2) when aroused, he does not take no for an answer.
- Possibility of collusion between Complainant and his ex-wife (wife and complainant knew each other, ex wife told
complainant she got 16 grand for saying she was abused – whiff of profit, few days after that, complainant went to hotel
room with accused).
Decision:
[1] SFE is presumptively inadmissible
[2] Evidence which does no more than show the accused is the type of person likely to have committed the offence is
inadmissible (propensity evidence)
[3] SFE may be admitted to show a specific rather than general propensity if Crown shows on BoP that the probative
value SIGNIFICANTLY outweighs the prejudicial effect
o Moral Prejudice: Risk of drawing prohibited inference that the accused is the kind of bad person likely to commit
the offence; The forbidden chain of reasoning - convicting based on bad personhood (risk of this is high when the
similar facts are worse than the charge before the court)
o Reasoning Prejudice: Distraction, confusion, disproportionate focus on whether similar act happened, accused's
inability to respond to allegation of SFE due to time passing or collateral nature of inquiry
[4] 6 Guiding Principles to determine admissibility of SFE
1) Strength of the evidence that a similar fact event actually occurred (the more believable that it occurred, the
more probative value the SFE will have) (ie. criminal conviction = strong // poor witness testimony = weak) The
credibility of the witness must be considered and if there is any motive to lie it must have an effect.
2) Issue in question" "Proof of a general disposition is a prohibited purpose. Bad character is not an offence known
to the law. Crown cannot ease its burden by stigmatizing the accused as a bad person"
o Issue cannot be framed as widely as "Credibility" since this is an issue at most trials
o The SFE must go to a specific issue in question in the case (ie. rebut a defence of accident)
E.g. SFE that AC has B & E 14 houses in last 2 yearsonly relevant to propensity
E.g. SFE that AC had B & E 14 houses & every time flooded the houseonly relevant to identity of offender
3) Required Degree of Similarity
o the judge should evaluate the degree of similarity of the alleged acts and decide whether the
improbability of coincidence has been established (hallmark or signature). Only then will it have
sufficient probative value to be admitted.
4) Connecting factors Non-exhaustive factors connecting the similar facts to the current charge:
o Proximity in Time, Extent of Similarity, Number of occurrences, circumstances surrounding, distinctive
feature, intervening factors, other factors supporting or not
5) Admissible vs. Inadmissible (A spectrum) - general character or propensity for violence vs. hallmarks/calling card
6) SFE need not be conclusive of guilt to be admissible (weight is up to TOF)
-- At the end of the analysis the Crown must show on BoP that the probative value SIGNIFICANTLY outweighs the
prejudicial effect
- Collusion Can arise from deliberate agreement or communication that tailors their description of events
1.
Mere opportunity or contact is not enough
- *Judge must assess if there is an "air of reality" for collusion; If there is  the Crown must show on BoP that SFE
is not tainted with collusion, otherwise SFE will be excluded.
- If SFE is deemed admissible the trial judge must provide the jury with a limiting instruction with regard to the
prohibited inference
R v Z (HL 2000)
Issue: Can similar fact evidence that arises from a previous acquittal be admissible?
Decision: HL states that this type of evidence can be admissible notwithstanding a past acquittal. It is admissible because
the accumulation of such similar fact evidence over time will create an inference regardless of whether there was
enough evidence at the time of the acquittal.
** This decision is unlikely to happy in Canadian Law due to rules of Double Jeopardy and the Charter s. 11(h) – a Crown
with a failing case should invite a stay, not call no evidence.
Exception: Ollis exception
- the Crown can lead evidence underlying a previous acquittal to establish the accused’s state of mind in relation
to
a subsequent charge (ie. he knew he had no money in the account as he had already been charged for fraud
once)
ACCUSED’S CHOICE TO INJECT CHARACTER
• If an accused does not raise their character, Crown cannot attempt to bring character evidence (unless it falls under
SFE) The Crown may only raise s. 12 CEA which allows the Crown to bring up or cross examine accused on previous
criminal records regarding the date, place, type of crime, for the issue of credibility.
Accused may inject his character, but this is a risky gamble. How to lead CE:
Expressly
(1) General reputation evidence that he is not the type of person to commit the offence (general character
witnesses must confine themselves to the communities perception of the accused. They cannot express
their
personal opinion.
(2) Call expert evidence that he is not such a person as to commit the offence (subject to Mohan)
(3) Evidence of prior good character, of specific acts (bolster or supports his credibility)
(4) Testimony of the accused
Implicitly
• If accused engages in a vigorous 'character' attack against a Crown witness, he may be injecting C -->
Crown can lead evidence of accused's bad character or court can rule against a Defence Corbett motion.
- R. v. Scopelliti 1982 Accused shot two boys robbing his store; they had robbed him before. He tore down
the victims character on the stand. Attacking the character of the deceased may bring his own character into
issue.
- good character’ traits can be both good (honesty) or bad (homophobia) – they should be understood as any trait that
may help exculpate the accused.
*If accused injects CE, in rebuttal, Crown can call evidence (so you must make sure no skeletons in the closet as accused
loses bad character shield)
(1) **If the accused raised such CE, yet doesn’t testify himself, the Crown can reply with the accused’s past criminal
record (s. 666 CC)
(2) Cross examine character witnesses
- the cross examination of reputation witnesses is potentially dangerous for the accused. Reputation evidence
(what others think of the accused) is by definition hearsay and therefore hearsay can be used to refute it (ie. the
witness can be asked about rumours involving the accused etc.)
(3) Rebuttal reputation witnesses, rebuttal witnesses regarding prior inconsistent statements
(4) Expert testimony to show accused has necessary behavioural characteristics to commit offence
(5) Accused gave prior inconsistent statement about the case to any person
(6) Examine accused on evidence he has given of specific acts of character, but this is collateral fact – may be stuck
with answer as cannot contradict him on prior acts
- the Crown can refute evidence of good character of the accused.. But this evidence cannot be used to prove the guilt of
the accused (just destroy his credibility)
R. v. Davison 1974 ONCA
Accused's were professional criminals who lived off of bank robberies; Accused had not inject CE; Crown could not
cross-examine him on how he made a living.
• An accused is not to be treated the same way as other witnesses when looking into credibility (his entire life is not
open on the issue of credibility)
>> can only cross the accused on matters directly related to the case
- Crown can only raise S.12 for cross examining on date/time/place of past convictions, going to credibility,
Character Evidence Called by an Accused – Against a Co-Accused
- an accused person may try to establish that, by reason of his character, a co-accused is the more likely perp of the
crime with which they are charged. In doing so, the accused will have to put his own character in issue.
- An accused can rely upon the otherwise prohibited inference that the co-accused is, because of his character, the type
of person to commit the offence.
- the only barrier is that the accused cannot attempt to rely on facts for which the co-accused has already been
acquitted.
- the Crown cannot rely on inferences to find the guilty of the co-accused… they are only good to improve the likelihood
of the accused’s defense.
- The judge does still hold the discretion to exclude character evidence of this type about a co-accused when its
probative value does not warrant the prejudice that will be caused.
CHARACTER OF THIRD PARTIES
Non-accused Witnesses can be cross examined at large about all matters which reflect upon their bad character in order
to discredit the witness (exception of s. 276 & s.277) (but don’t do it too much or else, Scopelliti)
Counsel can ask about:
1.
Prior criminal record
2.
Discreditable conduct not resulting in conviction
3.
Outstanding charges & the details/circumstances of those charges
4.
Convictions on appeal
5.
Convictions as a young person
6.
Disreputable lifestyle/unsavory reputation
**But, this is bound by the Collateral Evidence Rule (can cross examine on W’s bad character, but cannot call evidence
to contradict the witness - you are stuck with their answer [but often W does not know this and will admit matters])
- the accused will bring their own character into issue if they attempt to cast blame on another by pointing to that
person’s general propensity to commit a crime.
- Crown can also call evidence to rebut the accused’s claims about a 3rd party.
R. v. Lyttle SCC 2004 Affirms that there is a broad right to cross examine a non-accused witness (particularly on the
issue of credibility) provided the accused/defence has good faith
It is proper to make suggestions of misconduct of the witness (but need some good faith basis for asking the question)
- This excludes suggestions made recklessly or ones the examiner knows are false
- There is no requirement that there must be an evidentiary foundation for every factual circumstance
/suggestion
R v Clarke: Crown cannot lead good character of their witness.
R v Scopelliti:
ISSUES:
1) Could AC lead evidence about previous robberies committed by 2 victims that were known to AC at time of incident?
YES
2) Could AC lead evidence about previous robberies committed by the 2 victims that were not known to AC at the time
of incident? Yes
REASONING:
1) ISSUE #1: evidence about previous robberies committed by 2 victims that were known to AC at time of incident is
relevant to AC’s state of mind & defence of self-defence
2) ISSUE #2: evidence about previous robberies committed by the 2 victims that were not known to AC at time of
incident relevant as circumstantial evidence as to their disposition—i.e. how they behaved during the incident.
However, AC would have to testify that victims behaved in certain manner. Then to support AC’s testimony, could lead
this evidence.
SEXUAL OFFENCE COMPLAINANTS
Twin Myths Prior to 1976 (1) evidence that she engaged in sexual activity with either the accused or someone else
means she is more likely to have consented; (2) women who are sexually active are less worthy of belief/credibility.
R v Pappajon 1980: the "honest, but mistaken belief in consent defence, which does not need to be based on R
grounds"; we still have this defence, but it must be in R grounds
Bill C-15 (1988)
- Removed corroboration requirement of the unsworn evidence of children
- Enacted s.715.1 regarding child video-taped statements (upheld in R. v. FCC and R. v. LDO)
- Allowed children to testify behind screens or out of a courtroom
Common Law Rape Shield: R. v. Seaboyer and Gayme 1991
- Struck down Rape Shield #2 as unconstitutional
- Upheld S.277 (reputation shield) of the CC
- Created a CL rape shield that protected against any evidence of the complainant's sexual history
Bill C-49 (1992) created Rape Shield #3
- Response to Seaboyer.
- Restricted the "honest but mistaken belief consent" defence by defining consent
- Self-represented accused cannot cross examine a young complainant - Court would appoint counsel for him
Bill C-126 (1993)
- Not mandatory to instruct the jury about convicting on the evidence of child
rd
3 Party Records
- R. v. O’Connor 1995 decision - right of an accused to 3rd party records under restrained circumstances.
Bill C-46 (1997) 3rd Party Records in Sexual Offences
- Enact dissent of L’Heureux Dube J. in O’Connor (no disclosure of 3rd party records in sex offence cases)
R. v. Mills (1999)
- Upholds constitutionality of Bill C-46
No means No
- R. v. Ewanchuk (1999): Consent is redefined – accused must be fully informed.
R. v. Darach (2000) upholds Current Rape Shield #3 of s.276 of CC
THE RAPE SHIELD: 4 main areas in ss. 274 to 277
[1] s. 274: No Corroboration Required for Sexual Assault Matters
o If the accused is charged with these offences…no independent corroboration is required & the judge
shall not instruct the jury that it is unsafe to find the accused guilty in the absence of corroboration.
[2] s. 275: No Recent Complaint Required
- For the enumerated offences, the complaint need not be made recently
[3] s. 276 - 276.5: Rape Shield
- Designed to protect an unwarranted intrusion on the prior sexual history of the complainant
- sexual reputation is not admissible on issue of consent (s. 276 (2)(A)) or belief (B)
- 276.(1) In a sexual offence proceeding, evidence that the complainant has engaged in sexual activity, with
accused or anyone, is not admissible to support an inference that the complainant a) is more likely to have
consented to the sexual activity b) is less worthy of belief (These are the "twin myths")
- But, 276(2) This is subject to the judge being persuaded that
a. the evidence is of specific instance of sexual activity
b. is relevant to an issue AND
c. has "significant" probative value that > than prejudice to the proper administration of justice
- 276.1(3) Lists factors the judge should consider in deciding admissibility:
a. Interests of justice, including the right of the accused to make full answer and defence
b. Society's interest in reporting these types of defence
c. Reasonable prospect that evidence will assist
d. Need to remove from fact-finding process and discriminatory belief or bias
e. Risk of evidence unduly arousing prejudice, sympathy, or hostility
f. Potential prejudice to the complainant's personal dignity and right of privacy
g. Right of complainant to personal security and protection and benefit of the law
h. Any other factor a judge considers relevant
Two Stage Procedure
1.
S. 276.1: First Stage:
1.
Prepare written application for hearing
2.
TJ considers application w/o jury
3.
Application must articulate detailed particulars of what evidence is & how it is relevant
to issue at trial
4.
TJ then decided if evidence “capable of being admitted.” If so, 2nd stage:
2.
S.276.2 : Second Stage:
1.
Jury excluded for hearing
2.
CO is not a compellable witness at this hearing
3.
TJ decides whether some or all of evidence admissible under s. 276(3) considering 3
criteria in s. 276(2) and 8 factors in s. 276(3)
4.
TJ must provide reasons
2.
S.277:
1.
sexual reputation is not admissible on issue of credibility (s. 277)
2.
Evidence of general or specific reputation not admissible for purpose of challenging/supporting
credibility of complainant
CIVIL CASES
- Unless the character of a Civil party is directly an issue (e.g. defamation), CE cannot be called
Good Character
- Generally inadmissible
Bad Character
- That is presented as circumstantial proof of what happened is generally inadmissible, but there is SFE
- Mood Music Publishing English 1976
o Probative value of the evidence > its prejudicial effect (does not require SFE to substantially outweigh)
o D was passing off of music created by another artist; evidence re: their previous passing off was
admissible to establish that the current incident was not passing off accidently. SFE rules regarding
restriction are less rigorously applied in civil cases
o -Rules against SFE are much more lenient in a civil context as the jeopardy is lower.
HEARSAY
ACTION or UTTERANCE MADE OUTSIDE OF THE COURTROOM by another, TESTIFIED TO BY A WITNESS IN THE PRESENT
PROCEEDINGS and tendered for its TRUTH  PRESUMPTIVELY INADMISSIBLE (R. v. Khelawon)
2 Approaches to Hearsay Evidence
[1] Traditional Categories Approach (traditionally, many exceptions with seemingly no underlying governing principles:
- Admissible if its purpose is not to establish the truth of the statement but rather the fact that the statement was
made
- (ie. Suburumanian: guy walking through jungle with ammo. Told the court that the terrorists threatened to kill
him and his family unless he did it. Whether or not the terrorist meant it / was telling truth does not matter, we
are looking at the credibility of the witness, not the truth of the statement’s contents (admissible hearsay) – not
entering it for the truth of its contents, simply because it was said (court can believe or disbelieve the claim)
- Inadmissible if its purpose is to establish the truth of the statement
o Unless, you bring yourself within a recognized exception e.g. Dying declarations, Business records.
Whether an exception should be recognized: What is the substitute for the oath & what is the substitute
for right to cross?
[2] Principled Modern Approach
- Admissible if its purpose is not to establish the truth of the statement but rather the fact that the statement was
made
- Presumptively inadmissible if its purpose is to establish the truth of the statement
- Starr: hearsay is presumptively admissible if it falls under a recognized exception, but still has to go through the
twin approach of Necessity and Reliability
2 Major Reasons for Inadmissibility
1. Generally the assertion is not under oath
2. There is no opportunity to cross-examine what the person said (ability to cross examine testimonial factors is a
primary tool for testing reliability and honesty)
- More reasons - Possibility of fraud (witness can lie), make decisions on ‘Not the best evidence’, Cannot observe
the demeanor of the declarant of the statement - cannot test his reliability/honesty, Lengthens the trial
EVIDENTIARY VALUE OF PRIOR STATEMENTS
Inconsistent Statements (subject to exceptions, they are generally only admissible at the instance of the opposing party)
- For Non-party witness, a prior inconsistent statement (subject to s. 715 CC and the rule in KGB) is NOT
admissible, unless adopted by the witness while under oath, during either examination in chief or
cross-examination.
o W’s can have the statement put to them, and be cross examined on it, under S.9(1)/(2)
- For Party witness, inconsistent statements are admissible as Admissions, a traditional exception to hearsay.
Consistent Statements
- Both Party and Non-Party witness: Prohibits the inclusion of prior consistent statements made by your witnesses
- Rational
a) Self-serving
b) The place for the accused to give his explanation is in the witness box, subject to cross examination.
Exceptions to rule prohibiting reception of prior consistent statements by your witness:
1. RECENT COMPLAINT DOCTRINE
o S.275 prevents recent complaint for sexual offences; but it remains an exception for other cases
o Though the substance of the complaint is not admissible, in any type of criminal case, you would be able
to say that there was A complaint made and why (e.g. 1 day after but cannot disclose the particulars)
1. Prior Identification Witnesses are allowed to confirm their prior identification statements.
2. RECENTLY FABRICATED EVIDENCE
o Where in cross examination, there is an allegation of recent fabrication, in re-examination, his counsel
can lead evidence that his prior statement was consistent with his present testimony
o This is why it is important to take a dated statement from a witness so to overcome recent fabrication
3. STATEMENTS ON ARREST OR DETENTION
o R v Lucas Where the defence is examining the accused in chief, the accused can give evidence that he
made a statement to the police following his arrest that was consistent with his current statement
(“what I just testified to is exactly what I told the police in my statement”)
But accused himself must give this evidence in the witness box
o R v Risby the “I don’t know” was found part of the Res Gestae, but it was made upon arrest
4. S. 715.1/2 Prior testimony on Video Taped statements from witnesses who are under 18 or disabled
5. DOCTRINE OF RECENT POSSESSION
o If accused is in possession of recently stolen property, then, in the absence of an explanation which
might be R true, the TOF could infer that accused knew it was stolen (allows for a permissive inference
about knowledge). The explanation is to be given at the time of possession. The defence is entitled to
elicit from the police officer what was said at the time the accused was found in possession of it.
6. STATEMENTS THAT FORM ‘PART OF THE NARRATIVE’ (RES GESTAE)
o Statements that provide background info around an event, complete the narrative – do not go in for
their truth and should be admitted only where clearly necessary to provide a comprehensible account of
how the case went
IMPLIED ASSERTIONS
R. v. Ly 1997 SCC Officers raided the accused’s house. Find small amounts of drugs (not enough to indicate dealer). They
answer his incoming calls that are all orders for drugs. The phone calls were admissible, not barred by the hearsay rule
1.
Cell phone calls were real evidencepolice officer just recounting what he heard, saw.
2.
ROYAL: but even if you applied principled approach to phone calls, would be admitted:
1.
(i) necessity: yes, because drug customers cannot be located.
2.
(ii) reliability: yes, because there were 10 calls, all were drug orders, all were spontaneous
R. v. Wysochan 1930 SKCA Woman dying tells husband "Husband, help me I've been shot”. Implied assertion is that
since she was looking to her husband for help, he didn't kill her, and since only the three of them were in the house, the
accused must have killed her. The statement was admissible for its truth (that the accused had shot her)
1.
Implied assertions are not barred (we allow them in for their truth)
1.
Possible Exam Question: would this comply with the principled approach?
1.
Necessity: yes, because women was dead
2.
Reliability: no, because implied assertion assumes that women (1) saw who shot her; or (2) did
not forgive husband for shooting her
EXCEPTIONS TO HEARSAY
The CL categories of exceptions have two characteristics, that are used today by the Modern Approach
- Necessity: where cross-examination is impossible (e.g. death, unable to locate, etc)
- Reliability: something in how the statement was made gives it a guarantee that it is true (stamp of reliability)
TRADITIONAL CATEGORIES OF EXCEPTION
Starr: hearsay evidence is presumptively admissible if it falls under a recognized traditional exception:
1) PRIOR INCONSISTENT STATEMENTS
- Statements made prior to trial may have testimonial value, depending on 1) the maker and 2) their adoption in the box
- Orthodox Rule: a prior statement, made by a non-party witness which remained unadopted by that witness at trial, has
no evidentiary impact (cannot be assessed for truth, it only can go to the witnesses credibility).
- The rule in KGB changed this orthodox rule if the statement is taken under certain specific circumstances (then it can be
put in for the truth of its contents)
- the orthodox rule is also subject to s. 715
*The most effective method of challenging or impeaching witness is to show the witness has made a prior inconsistent
statement
*R v KGB [Admitting unadopted prior inconsistent statements for their truth]
Facts: 2nd Degree murder; The accused and 3 other youth were involved in a street fight with the deceased. The
deceased was fatally stabbed. 3 of the young men were interviewed by the police; each had a parent and in 1 case, a
lawyer; they were warned how serious it was to give the truth; they were videotaped with their consent. Their
statements implicated the accused as murderer. At trial, all 3 recanted. Judge applied traditional rule that prior
inconsistent statements that remain unadopted at trial by the witness are only admissible to challenge W’s credibility.
Held: SCC admitted the unadopted video-taped statements of the 3 non-party witnesses for their truth
Reasons:
• A prior inconsistent statement that remains unadopted at trial can be admitted for the truth of its contents when:
1) NECESSITY
• is satisfied where the declarant is unavailable to testify at trial, recants, loses memory etc.
2) SUFFICIENT INDICIA OF RELIABILITY
• the judge decides whether there is Threshold Reliability; TOF determines the truth of the statement (Ultimate
Reliability)
- To be admitted, a S. 9(2) CEA Voire Dire must be held to determine admissibility (procedure from Milgard)
1. W is shown video tape and asked i) is that your statement? & ii) do you adopt it?
2. If no adoption takes place, the party that wants the statement excluded can cross examine the witness
regarding the circumstances under which the statement was taken. This is with a view to demonstrating
that the statement is not reliable (no oath, no warning of consequences), or there are circumstances
which make it such that the judge ought not allow it to be played for the TOF (e.g. not made voluntarily,
leading, promises or threats)
3. The tendering party will call evidence to establish ‘Threshold reliability’ (must establish on a BoP)
There will be sufficient circumstantial guarantees of reliability where:
a. Witness gives statement under OATH/Affirmation + warned of the CONSEQUENCES of giving
false statements
b. The statement is VIDEOTAPED in its entirety
c. The opposing party has the opportunity to cross the witness on the statement
o
The above should be present for admission. But there may be circumstances where other circumstantial
guarantees of reliability may suffice.
o Even where there is sufficient indicia of reliability, judge will still have the discretion to refuse to allow
the jury to make substantive use of the statement (e.g. if it would bring the administration of justice into
disrepute)
o Statement itself must be otherwise admissible (ie. does not breach other rules of evidence)
4. If ruled admissible, the party tendering the statement will play the tape to the jury. If under cross exam
the witness still maintains their recantation, the tendering party could urge the TOF to accept the video
taped statement for the truth of its contents “ultimate reliability”
2) ADMISSIONS OF A PARTY
[1] Anything said or done by a party, before or during the trial is admissible (people don't usually make statements
against their interests unless the statement is true)
[2] Depending on the admission, the Crown may choose to tender
1. Full Blown Confession (inculpatory)
2. Mixed Statement: Partly inculpatory ("I killed him"), partly exculpatory ("but I was using self-defence”)
o R v Rojas Where there is a mixed statement, jury must be directed that both are equally probative; there
is not an automatic discount of one part simply because it is self serving (we don’t use Duncan HL)
3. "After the fact conduct" circumstantial evidence to show he is a liar (fleeing jurisdiction, disposing of evidence0
4. Exculpatory Statements: Crown should have this ruled admissible, but not tender it, until and unless such time
as the accused enters the witness box in order to show that his statements are inconsistent
[3] 5 Types of Admissions
1) Admissions admissible against the maker
• *Admissions made by one co-accused are admissible only against the maker, and not other co-accused's
o Jury is charged on this limited use; but the co-accused can always seek "severance” so that what if one
co-accused’s admission implicates the other, the other can have his own trial (but, the concern to the
defence here is that the Crown now has the co-accused as a C&C witness against your client)
• *Testimony made by one co-accused is admissible against maker and other co-accused: evidence "at large"
o Evidence given while in the witness box is useable against all people, for and against everyone
o Once a co-accused has elected not to testify, cannot change that election later when his co-accused
steps into the box and implicates him (No honour amongst thieves- cutthroat defence) *Structure your
indictments this way so a weak link who is likely to roll is testifying last.
2) Vicarious Admissions
• If an admission is made vicariously by an authorized agent, it might be admissible against the principle
3) Admissions by Silence:
- admissions may be implied from the silence of a party if certain conditions exist:
i) a statement, usually an accusation, is made in the presence of the party
ii) in circs such that the party would be expected to respond
iii) the parties failure to respond could reasonably lead to the inference that, by his silence, the party
adopted
the statement
iv) the probative value of the evidence outweighs its prejudicial effect
- a voir dire will be held with respect to the issue of admissions adopted by silence
* the principle of adoption by silence does not apply where an accused is confronted with the
allegations by a person in authority (ie. police) >> an accused’s right to silence is triggered
4) Admission by Conduct
• admissions may be implied from a parties conduct (ie. flight from the scene, lying when questioned) (the
issue is one of relevance…. The courts must be satisfied as to the validity of the inference from the conduct
to
the alleged admission)
5) Co-conspirator’s exception
• If the accused implicates others in his admission, his admission cannot go against the others. This is subject to
the co-conspirator’s exception:
• Only those statements made during the course of the conspiracy and in furtherance of the conspiracy fall
within the exception (ie. a co-accused’s guilty plea is not admissible against the others, nor is their confession)
- Applies to all criminal offences which involve more than one accused who are engaged in a "common
unlawful or illegal enterprise" R. v. Koufis
- Applies to both indicted and non-indicted conspirators
- Crown can use viva voce evidence (e.g. testimony from co-conspirator) or technology like surveillance/wire
R. v. Carter (co-conspirator exception)
• Admissions by co-conspirator admissible against other co-conspirators if 3 conditions met:
“ENTERPRISE”
1. Demonstrated BARD that there was a common unlawful purpose or conspiracy.
“MEMBERSHIP”
2. (Threshold Question) There is independent evidence establishing on a BoP that the person, against whom the
evidence is being used, is a member of the illegal group or conspiracy (Judge rules on admissibility on BoP)
3. The statements or actions made by the other members, are BARD in “*furtherance” of the common illegal
activity or conspiracy against the accused (TOF decides on BARD – just because exception is operable doesn’t
mean conviction will necessarily follow – up to TOF)
- Jury must be told that if the act/statement was not in furtherance of the conspiracy BARD, it cannot be
evidence against the co-conspirators (R. v. Stewart)
- Statements given after arrest by co-conspirators are not ‘in furtherance’ and cannot be used against the
others (must be while to offences were ongoing and in order to facilitate them)
3) PRIOR IDENTIFICATION
Eye witness ID is a major cause of wrongful convictions
Dock ID: When the witness, for the first time, identifies the accused in the Courtroom as the suspect while the witness is
in the witness box and the accused is in the prisoner's dock.
Turnbull (UK)
• 2 types of cases where proper identification of AC is major issue:
(i) “fleeting glance” cases
(ii) observation of AC over longer period of time but under difficult circumstances
• During sexual assault, In the dark, Poor lighting
RATIO: This type of eye-witness identification so notoriously weak that no conviction can safely rest upon it. If
identification in these 2 types of circumstances is the only evidence against AC, there should be a non-suit/directed
acquittal.
Mezzo (1986) SCC:
FACTS: Police show “photo pack” of sex offenders, and she picked AC with total confidence. This was only direct
evidence against the accused.
ISSUE: does the Turnbull ratio apply in Canada?
DECISION: No.
REASONS: Why?
• If basis of case is solely non-corroborated eye witness identification under (i) fleeting glance or (ii) difficult
circumstance situation, then TJ must still allow the case to go forward.
*Must not confuse admissibility of evidence with weight to be given to that evidence. TJ must give instruction to jury of
the dangers of this type of evidence standing alone
R v Hay (2013) SCC:
Facts: Homicide in TO nightclub. Hay is a complete stranger to everyone in the club. 1 Female is ID evidence. Bad circs
for an ID: low light and fleeting.
Ratio: where the Crown case is sole ID testimony that would leave reasonable doubt in the mind of a reasonable juror –
a nonsuit or directed verdict must be granted (MAY OVERRIDED MEZO – it is implied)
* if the case consists exclusively ID evidence in bad conditions—it should be taken from the jury and an acquittal
directed
R v Hibbert 2002 SCC
• Dock identification is essentially worthless; it is not entitled too much weight; it is deceptively credible because the
witnesses are usually being honest
• However, in-court identification is still permitted to occur:
- Affirms the accused was, in the opinion of the witness, the one responsible (may be given some weight)
- If witness is not asked to identify accused, jury might draw adverse inference against the Crown
- Inability to identify the accused as the perpetrator has some weight
Ratio: Dock identification is permitted, but is not to be given much weight. Jury should be cautioned that identification
by a witness is highly problematic as direct reliable identification of the perpetrator.
• To meet the suggestion that the W’s Dock ID is almost worthless, counsel calling the W in direct exam is permitted to
lead evidence that the witness made a Prior Out of Court Identification (e.g. photo line up) & would be able to call the
officer conducting the line up to see if and how long it took to identify, any comments made, demeanour at the time.
May use a placebo line-up to increase reliability. Line-up officer usually not connected to the investigation.
- When the witness has identified the accused before the trial
- Admissible where:
o Another witness (cop) confirms the prior ID and accused is again identified in court as the
perpetrator (Powerful evidence of ID)
o Witness makes no in court ID, but testifies that they previously gave an accurate ID
- where the witness fails to make an in court ID, and does not testify as to the accuracy of any prior ID, then the
out-of-court ID is treated as hearsay and is inadmissible
4) PRIOR TESTIMONY
Civil: Town of Walkerton v. Erdman 1894 Prior testimony admissible if:
1) Substantial commonality between the parties and the issues at play in the present trial.
2) Witness is unable to testify
3) Opposing party had opportunity to cross-examine witness at earlier proceeding.
Criminal:
• S.715 CC - The prior testimony of a witness at a previous trial, preliminary inquiry, investigation on the same charge,
will be admitted in trial if:
a) The witness refuses to give evidence again, is dead, insane, too ill to testify, or absent from Canada, and
b) The opposite party had an opportunity to cross examine the witness in the earlier proceeding
R. v. Potvin: Upheld constitutionality of s.715 (brief on pg. 9)
• Judge has discretion to exclude evidence even if the requirements are met
*Remember - Where the prior testimony does not fit under s. 715, recourse may be made to the principled approach
R. v. Henry
Ratio: Prior testimony of accused is not admissible at accused’s own trial if the accused was compelled in the prior
proceeding (ie. his co-accused’s trial)
* However, if the previous testimony was volunteered (re-trial situation: if the accused previously decided to testify on
his own behalf). The earlier testimony can be used on cross if the accused decides to testify again (goes to credibility..
can not simply be read in as truth). If he decides not to testify at his re-trial the previous testimony cannot be read in or
used.
Nedulco Case: transcript from civil discovery can be used in a subsequent criminal trial regarding the same matter.
• Notwithstanding the compulsory nature of discovery, the testimony given there can be used in cross in a subsequent
criminal trial if the accused volunteers to take the stand.
5) PRIOR CONVICTIONS
Civil S.26 AEA Prior criminal convictions can be introduced in civil proceedings.
• If the previous criminal matter has resulted in a conviction, one can use the conviction in the subsequent civil
proceeding. (it is admissible because the burden of proof is higher in Criminal Law – very reliable). The weight attached
to that conviction is up to the trial judge to decide (ie. if it was a plea down to a lesser offence – you may still deny it and
less weight may given to it).
• criminal acquittals are not admissible as it doesn’t necessarily mean you are innocent.
Criminal S.12 CEA Witness may be question on previous convictions
• The word “may” implies the judge can still exercise discretion and decide to exclude all or part of the record. (Corbett
Factors)
6) DECLARATIONS AGAINST INTEREST BY NON-PARTIES
• If a party made an inculpatory statement it would be admissible for truth of its content as an admission.
• If a non-party made a statement not against their own interest, it is inadmissible for the truth of its contents, subject to
KGB/715
• If a non-party made a statement against their own interest, it is usually admitted since people generally do not make
statements against their own interest unless they are true.
- 2 major categories:
Pecuniary Declarations:
1. Declarant is unavailable to testify (=> necessity)
2. Statement was made against his own interest (people don’t make statements against interest unless
true)
3. At the time the statement was made, the declarant had personal knowledge of fact he was asserting.
Penal Interest: (R. v. O’Brien) - occur when some makes an admission that he/she is responsible for a crime where
someone else is the subject of the prosecution.
1. Declarant is unavailable to testify (=> necessity)
o Due to 715 reasons: dead, insane, unable to travel, not in Canada (but, refusal to testify
doesn’t count)
2. The statement cannot incriminate the accused (only exculpate them)
3. Statement must qualify as a declaration against that persons penal interest
o (1) Cannot be more exculpatory than inculpatory
o (2) Cannot be a “qualified or guarded declaration” (seek protection by s.5(2) of CEA that
makes his testimony inadmissible against him at own trial, or under s. 13 of the Charter)
[but this is automatically - Henry]
7) DYING DECLARATIONS
• Only admissible in Criminal cases of Homicide
1. Deceased had an expectation of almost immediate death (likelihood/probability is not enough)
2. The statement was about the circumstances of the death
3. The statement would have been admissible if the deceased was able to testify; and
4. The offence directly involves the death of the deceased
- A dying declaration, since it is a traditional exception, is presumptively admissible.
o But might not pass Starr: Clearly there is necessity, but might not survive reliability as: some
people are ok dying with a lie on their lips + the dying declarant might have inaccurately
perceived the events
8) DECLARATIONS IN THE COURSE OF DUTY
Aryes v Venner (SCC): Records made in the ordinary course of one’s employment are admissible for truth of their
contents (E.g. recording of inventory, nurse’s observations of patient, entries made in hotel records, information
recorded in gov’t registries etc.)
• Declarations made in the course of duty are admissible for their truth where:
1) they are made reasonably contemporaneously
2) made in the ordinary course of duty
3) by persons having personal knowledge of the matters
4) who are under a duty to make the record or report
5) there is no motive to misrepresent the matters recorded
• Admissions of business records largely overtaken by statute
> CEA S. 29: banking records (no notice required) (e.g. fraud cases)
> CEA S. 30: business records - “business” is defined very broadly (7 days notice for both Crown & accused)
9) STATEMENTS MADE AS PART OF THE RES GESTAE - “part of the things done”- spontaneous
• Statements of present physical condition, present mental state, excited utterances, present sense impressions can be
admitted for the truth of their contents provided they are both necessary and reliable.
R v Starr: Deceased's statement to his girlfriend about where he was going and with whom (present intent):
• Necessity YES (because he was dead), reliability NO (because he could have been lying to the girlfriend since he was
with another woman).
R v Smith "Detroit hit case" (statements of present intent)
Facts: It was Crown’s theory that accused took victim from Detroit to Canada in order to smuggle cocaine back into the
US; the victim refuses to do this, so he kills her, shortly before she made phone calls to her mother about her location
and the presence/absence of the accused (hearsay as it didn’t fall into any traditional categories).
• First call: "Larry abandoned me at the hotel and I want a ride home"
• Second: "Larry has not come back yet"
• Third: "Larry has returned and I don't need a ride anymore after all" [if this is admissible for its truth, it puts the
accused right at the scene of the crime]
Reasons:
(Affirms moving to a more principled and flexible approach)
• Necessity: YES, she is dead
• Reliability:
- First two are admissible: no reason to doubt her truthfulness - perception, memory credibility problems not significant
- Third is not admissible: 1. she may have been lying to her mom, as she had a fake credit card and was a criminal so we
have evidence of deception, and 2. she may have inaccurately concluded it was his car that was back.
*Where necessity and reliability are established, lack of available cross examination goes to weight and not to
admissibility (but in this case reliability not established)
Excited utterances: statements may be admitted if made contemporaneously with a startling or frightening event.
Where they are so clearly spontaneous or part of the event itself such that the possibility of fabrication can be dismissed
R v Ratten Woman calls police saying her husband was going to shoot her. Phone goes silent. She is found shot and
killed.
- if the evidence is admitted it would rebut his defence that the gun went off during a cleaning.
• Reasons:
1) close and intimate connection between the statement and the shooting
2) close in time and place, and tone of the victim evidences she was under the stress of excitement caused by the event
> 911 calls are often admissible.
R v Ribera
Facts: Spousal. Verbal argument. Woman gets knife, goes to bedroom & stabs husband once in the stomach. He gets the
phone and calls the police immediately. He tells the operator that he has a knife in his chest and he says that it was his
wife who stabbed him.
Held: Phone call admissible under res gestae exception.
Reasons:
• the statement was very contemporaneous; it has the classic stamp of reliability and accuracy.
Risby 1978 Police officer arrests a man and spots a bag of drugs, asks the accused “what is this?” The accused answers “i
don’t know, aint mine.” Defence was allowed to adduce from the officer the utterance of the accused and cross examine
the officer about the accused’s statement.
Ratio: This case is limited authority that the defence can lead self serving evidence out of the mouth of the police due to
the exception of res gestae.
HOWEVER: This might now fail the principled approach for reliability, i.e. most people would say “i don’t know”,
uttering a denial (self serving statement) and therefore may not be admissible despite fall under a traditional exception.
Tepper (Privy Counsel)
Facts: Owner of building charged with fraud and arson.
• Crown called a witness that heard a woman was shouting from the crowd “your place burning and you going away
from the fire”.
• The witness then says he saw a car being driven away with a man that looked similar to the accused.
Issue: Is the hearsay about the person yelling in the crowd admissible for the truth of the contents (the crowd was 220
yards away and this was 20 minutes after the fire started)
Held: This was not sufficiently contemporaneous and did not hold the stamp of reliability (not admissible)
THE NEW PRINCIPLED APPROACH TO HEARSAY
Ares v. Venner 1970 SCC
Facts: Skier in Jasper is improperly casted, resulting in amputation of his leg; Nurses are under a duty to properly report
patient records. The notes of the absent nurses are admissible for their truth
Ratio: Business records are admissible hearsay for their truth where the "record is made in the normal and ordinary
course of business and there is a duty to record".
*Note: The court recognized that existing exceptions to hearsay were all based on 1. Necessity and 2. Guarantees of
trustworthiness; thus, new exceptions to hearsay can be made when the twin criteria are met.
R v Khan “fundamentally new approach to hearsay”
Facts: Dr. sticks penis in mouth of little girl. On ride home little girl tells her mother what the Dr. did. A mix of saliva and
semen is found on the child's jacket shortly after.
• Traditional Approach to Hearsay – the hearsay did not fall under any traditional exception (not spontaneous since given
half hour after the incident and not under pressure or emotional intensity that would give it reliability)
• Modern Principled Approach to Hearsay:
- For hearsay to be admissible, it need not fit into a traditional category of exception. Requires:
1. Necessity
o Met where the witness is Incompetent, dead, mental incapacity, absent from Canada, refusal to testify,
psychologist states testimony of a child in court may be traumatic etc.
o Here, necessity was established because the witness was incompetent to testify
2. Reliability: Circumstantial Guarantee of Trustworthiness
o Factors - timing, demeanour, personality, intelligence, understanding, and absence of reason to expect
fabrication
o Here, there was strong indicia of reliability
The evidence of a child of tender years may bear its own special stamp of reliability
Statement made before any suggestion of litigation, not made in favour of her interest, no
knowledge of sex, made the statement without being prompted to do so, *Corroborated by real
evidence (stain)
R v KGB (Affirmation of new principled approach)
• Prior statements of a non-party witness can be admissible for their truth even if the witness recants the statements, if
there is sufficient reliability and necessity established in a s. 9(2) Voir Dire.
1. Necessity: Recanting witness holds the prior statement, and thus the relevant evidence, hostage.
2. Reliability: Oath/Affirmation, Consequences, Videotaped, cross available, striking similarities, no motive to lie
R v Hawkins & Moran:
Facts: Hawkins, a police officer, was charged with obstructing justice (gang ties). At the Prelim his girlfriend Ms. Graham,
testified and implicated him. Later, she recanted much of what she had said. Hawkins and Ms. Graham get married in
order to benefit from the rule that a wife is incompetent and not compellable to testify against husband (S.4 CEA)
Decision:
[1] S. 715 The marriage did not represent a refusal to give evidence, because the common law rule of spousal
incompetency disqualifies a spouse from giving evidence, regardless of the spouse's choice, so does not fall under
(715.SCC would not allow Crown to rely on s. 715 to indirectly what they could not do directly)
• But both the prelim and the recanted version were admissible under a principled exception to the hearsay rule.
[2] Principled Approach: Prior testimony, even at prior trials/investigations on the same charge, falls into hearsay. Where
the witness's testimony is not admissible under s. 715, it may still be admissible through the principled exception:
1. Necessity: Cannot testify on behalf of the Crown because of spousal incompetency; no other means of getting at
the evidence.
2. Reliability: SCC distinguished between threshold and ultimate reliability
- Threshold Reliability: Judge determines if there is sufficient guarantees of trustworthiness/sufficient indicia of
reliability.
o Her testimony had sufficient reliability as it was given under oath and the defence had a right to cross
examine her. The fact that they could not examine her demeanour at trial was not fatal.
- Ultimate Reliability: TOF considers the weight & probative value of the statement. The ultimate issue of
believability (which statements did the jury believe)
Residual Discretion
• Even where a particular hearsay statement satisfies the criteria for necessity and reliability, the statement remains
subject to the judge's residual discretion to exclude the statement where probative value < prejudice (Smith).
- Probative value: Her prior testimony could show whether or not the accused had committed the alleged
offences. The fact that she recanted, or that the statement was inconsistent does not diminish the probative
value.
- Prejudice and Unfairness: Allowing her testimony does not undermine the accused's relationship with her the testimony is from prior to the marriage, and also, they got married even after this testimony. While she
is incompetent by the Crown, she is competent by the defence (they are allowed to call her as their witness
if they want to reduce the prejudice)
R v Starr “Auto pac scam case”(all exceptions to hearsay must abide by modern principled approach)
Facts: Victims were with the accused. Girlfriend testified that victim told her he was leaving to go do a scam with the
accused. The accused was in another car, possibly following the victims.
Held: Not admissible hearsay under the “present intention” category OR under the principled approach.
Reasons:
• 1) If the statement falls under a traditional exception then it is presumptively admissible and your opponent has the
onus of demonstrating that it is not admissible under the principled approach.
• 2) If a statement does not fit under an old rule, it is presumptively inadmissible and you will bear the onus of
demonstrating that it is admissible under the new principled approach (twin criteria of reliability and necessity)
1) Attempt to have it fall as exception of “Present Intention Statement”
Statements of present intention are Not admissible:
o Where the statement was made under circumstances of suspicion or (Cook had motive to lie to gf)
o To prove the intentions of someone other than a declarant (the statement could in theory prove
Cook’s motive, but not the accused’s) (only the present intent of the speaker can be relied upon, not
the person they are talking about).
o If more prejudicial than probative (Cook’s statement was more prejudicial)
Statements of joint intention are admissible if the judge clearly restricts their use to proving
the declarant's intentions.
2) Attempt to have it admitted under the “Principled Approach”
• Necessity; YES
• Reliability: NO – no circumstantial guarantee of trustworthiness (Cook had motive to lie to his GF about where
he was going because he was having an affair)
Note: Court said you cannot look at surrounding circs to determine threshold reliability. (Khelwon overturns this)
R v Khelawon (2006) SCC (Correction of the “threshold reliability” limitations noted in Starr)
Facts: Khelawon is manager of nursing home. Victim gave a video taped statement of alleged incidents of abuse, but it
was not under oath. An employee who was about to be fired had taken Victim to the doctor and to the police for the
statement. Mr. K alleged she was disgruntled and wanted to get back at him. All of the alleged victims were dead by trial.
Held: Tapes inadmissible as hearsay. Not reliable.
Reasons:
1) Reliability: Mr. Skupien was elderly and frail, mental capacity was at issue , had been diagnosed with paranoia and
dementia. There was also the possibility that his injuries were caused by a fall rather than an assault.
Ratio:
• Trial judges may now consider evidence going beyond the circumstances under which the statement was made at the
threshold reliability stage (including corroborative and/or conflicting evidence in order to determine threshold
reliability).
• The bar that Starr erected on the use of corroborative evidence in the threshold reliability assessment no longer
applies.
Note: opens the door to having KGB statements put in despite the fact that the witness is dead and therefore not
available for cross at the time of the trial.
THE PRINCIPLED APPROACH TO HEARSAY ADMISSIBILITY
1. Hearsay evidence that falls under a recognized exception to the hearsay rule is presumptively admissible (prima
facie gets the evidence admitted because exceptions usually incorporate reliability and necessity)
2. However, even if it falls within a traditionally recognized exception, opponent may challenge its admissibility
using the Modern Principled approach [Bringing yourself within the exception does not mean you're home free]
a. This evidence may be excluded because evidence cannot meet the Modern approach in the
circumstances of the case
3. Even if it does not fall within a traditionally recognized exception, it can be admissible if in a voir dire, if person
seeking admission satisfies the onus under Modern Principle Approach
1. NECESSITY
o Why is it necessary that this evidence be received in hearsay form without cross examination?
o Necessity is not to be assumed, it must be established (e.g. cannot assume complainant with a
mental disability in sexual case cannot testify and that if she did, she would suffer significant
trauma) (R. v. Parrot)
o Necessity = E.g. a real possibility of trauma will be suffered by the witness, witness is an
incompetent child (Khan), witness is dead (Smith)
o That there is other evidence from other witnesses on the same point is irrelevant - we want the
particular witness – Quality Matters
2. RELIABILTY: CIRCUMSTANTIAL GUARANTEE OF TRUSTWORTHINESS
o Is there something that tells us that the evidence is likely reliable?
[1] Threshold Reliability: Judge is gatekeeper.
2 Factors:
i) Inherent Trustworthiness: the statement is made in circs that speak to its truth and accuracy
• spontaneous, natural, without suggestion, reasonably contemporaneous, no motive to fabricate,
sound mental state, child of tender years & corroborating evidence, recorded, was the person under
a duty to record, absence of motive
Khan: Child; Smith: no reason to lie; FJU: statements of accused and her were similar
Not passed: Khelawon: Old man, presence of about to be fired employee
ii) Testability: can the truth and accuracy be adequately tested
> any substitutes that address the hearsay dangers arising from lack of oath, presence and
cross-examination. They include:
• was the person under oath when making the statement
• was the making of the statement audio/video recorded
• at the time of making the statement, was the person cross-examined
• is the person now available to be cross-examined in court on their statement
- Necessity and threshold reliability are interrelated (ie. the greater the necessity, the less the reliability
required) (the greater the reliability, the less the necessity required)
[2] Ultimate Reliability: TOF: An assessment of whether the statement was true or not
* Keep in mind Residual Discretion: Even if the evidence is admissible under a traditional exception or under the
modern approach, the judge may still refuse to admit it if its prejudicial effect outweighs its probative value
• where hearsay evidence is tendered by an accused, a trial judge can relax the strict rules of admissibility where it is
necessary to prevent a miscarriage of justice (relaxed but not abandoned)
CIVIL CASES : Although the hearsay rule is said to apply, it is fair to say it is not as strictly applied as in criminal trials;
rather, the issue in civil matters is more on weight than on admissibility.
OPINION EVIDENCE
General rule prohibiting opinion evidence
- Opinion: Inference from observed fact
- Witness must testify to facts (who, what, when, where, why) within his knowledge and observation and not
their beliefs, speculation, or opinion about the case (it is for the TOF to make the inference)
LAY WITNESSES
Ordinary Witness exception where:
1) The witness personally made the observation
2) The opinion based on the observation is one that people of ordinary experience are able to make (within the common
stock of knowledge)
3) This witness had the experiential capacity to make the conclusion and the ‘opinion’ is nothing more than a direct way
of describing a statement of facts (ie. he was drunk—that is he smelled of booze, staggering, slurred speech, flush face,
glassy eyes, belligerent etc)
> we do not permit lay witnesses to provide opinion evidence outside the common stock of knowledge (things
we all know) – this is only the realm of an expert witness (a person with special, well-recognized and tested experience)
R v. Graat: police officer testified that the accused was intoxicated. This opinion is a way of describing a series of
observations (ie. indicia of intoxication. Same thing with speed of vehicle. Those people with more experience can be
given more weight).
R v Leany & Rolenson
Facts: Mut and Jeff criminal duo. Video camera in drug store activated by motion sensor. Their faces are masked. The
tape clearly shows their stature and motions.
Issue: would a layperson be entitled to give opinion evidence (ID based on their experience with these guys in the past)
Held: The police officers were permitted to give their opinion evidence. Judge even gave his own opinion based on his
observations of the two over the length of the trial (SCC said that is okay)
R v Nikolovski (video tape evidence as silent witness)
Facts: Video of a 7-11 robbery. The store clerk could not ID the accused as the robber. Could not make even dock ID.
The judge watched the tape and found that she could ID the suspect, it was the accused.
Issue: In cases of video evidence, is the trial judge allowed to become effectively a witness?
Reasons: When the quality is good, the court is entitled to come to their own judgment or opinion even if it is not
backed up by other witnesses. The tape is a silent witness.
ALL WITNESSES
Cannot provide opinion evidence
1) On domestic Canadian law
2) On the truthfulness or credibility of a witness. "Oath Helping" is not allowed; but impeaching the
witness's credibility is allowed. Can provide general information relevant to credibility, but not on
whether the witness is telling the truth. [This is for the TOF]
OATH HELPING
• Rule Against Oath Helping: A witness cannot offer an opinion as to the truthfulness of another witness (ie. calling a
witness that gives evidence to suggest that another witness is likely to be truthful). The fear is that the TOF will defer to
the opinion of others and not make the determination of reliability & credibility on their own.
• this rule also works in reverse – a witness cannot offer an opinion that another witness is not credible or unreliable.
• this rule is also breached where a witness offers an opinion on how to interpret apparent reliability problems with the
testimony of another (“I know her testimony was poor.. but that is consistent with battered women’s syndrome)
• you can not use hearsay to bolster ones own testimony (ie. “I confirmed with 5 of my colleagues and they all agreed)
* Exception: an expert may offer the TOF information outside their competence that can be used in making their own
conclusions about whether to credit the witness (ie. psychiatrist states that a particular witness has delusions or mental
illness that may cause misperceptions of events, or shows symptoms consistent with sex assault) (this is referred to as
opinion evidence relevant to credibility… not opinion evidence about credibility)
R v Kyselka: expert called to explain that the victim was too retarded to concoct a lie and therefore would be truthful –
testimony ruled inadmissible)
R v Clarke 1981: Crown led "general biography" of W who was accused’s fellow inmate.
Prior to his substantive examination W outlined things that he was doing ie. Bible Studies, attended AA meetings (done
before the Defence had tried to impeach the W); Background casting a W in a favourable light is permissive, but casting
of a W with the dominant objective of bolstering his character is not permitted.
R v Marquad "Nanna put me on the stove"
Crown doctor cannot state her view that the child was lying. Even experts cannot testify on the truthfulness of witnesses
(subject to exception noted above)
R v Beland and Phillips: The sole purpose of the polygraph evidence was to bolster the witness’s credibility (therefore
inadmissible).
Toohey (HL)
Facts: One guy pissing in the alley. They bumped into another person. The person claims they were trying to rob him.
The complainant taken to the police station. He was weird so they had the police DR. examine him. Dr. was prepared to
say that he had an anxiety condition that rendered him unreliable and without credibility.
• expert testimony against a witnesses credibility is okay (mental disorder/ condition makes them unreliable) but do the
reverse (cannot use it to buttress witness credibility) --- R v Hawke (affirmed in Canada)
EXPERT WITNESSES
• Expert evidence is presumptively inadmissible unless they meet the criteria outlined in R v Mohan
• Expert witnesses are entitled give opinion within their realm of expertise
• Number of Expert Witnesses: Civil - no restrictions; Criminal - s.7 CEA limits to five, but more can be called with leave
R v D(D) 2000 (danger of expert evidence)
Facts: It was found not necessary for expert to give evidence on why children who have been sexually abused do not
complain immediately after the offence (*experts must be necessary)
• Dangers of Expert Evidence --> May distort the fact finding process
o May usurp the role of the jury
Jurors can abandon their roles as fact-finders and simply adopt the expert opinion.
o
o
o
Jurors may give the expert opinion more weight than it deserves because they don’t understand
the evidence or the scientific jargon, the expert’s credentials are impressive, it is cloaked under
the mystique of science, can overwhelm the jury
Expert is highly resistant to effective cross examination by counsel who are not experts in the field
Expert opinions are usually based on academic literature and out-of-court interviews, which is unsworn
and not available for cross-examination (this is actually inadmissible as hearsay but gets in on the basis
that expert should be able to state the circumstances upon which that opinion is based)
Time consuming and expensive
ADMISSION OF EXPERT TESTIMONY
R v Mohan 1994 SCC (four criteria for admission of expert evidence)
> Expert evidence should be admitted based on four criteria, it must be on a BoP:
1) relevant (both logically and legally)
- the expert evidence must be logically relevant to a material issue (aka logically relevant)
- the costs associated with the evidence (distraction, confusion, disproportionate value, fact distortion, jury
usurpation) must not outweigh its probative value – aka (legally relevant)
2) necessary to assist the trier of fact (not merely helpful)
- necessary because it is outside the experience & knowledge of a standard judge/jury
- necessary to enable the trier of fact to appreciate the matters in issue due to their technical nature
3) the evidence must be otherwise admissible (ie. cannot breach Charter, character, hearsay or other rules)
- it must be admissible in and of itself
4) be given by a properly qualified expert
- counsel must outline the witnesses area of expertise (restricted to statements within their field)
[1] Expert must be properly qualified - they must have some specialized knowledge and experience - The bar is
not high (just must have greater knowledge and experience than the TOF)
[2] Expertise is determined in a voir dire e.g. look at CV. (Counsel exam and cross the witness about
qualifications, CV, whether or not they have previously not been qualified as an expert)
[3] Party seeking to have expert testimony admission must define the expert's area of expertise;
Counsel can only ask questions regarding areas that the expert has expertise on (Cannot offer an opinion outside
area of expertise)
• Even if the evidence meets all 4 parts of the Mohan test, the judge still holds the residual discretion to exclude the
evidence, in whole or in part, where its prejudicial effect > probative value.
Bases for Expert Evidence
1.
Expert Evidence may have different bases:
1.
1) Primary Expert Who has direct expert involvement in the investigation
1.
E.g. forensic pathologist who conducted autopsy & gives expert evidence re: cause of death
2.
Exclusion order applies
2.
2) Expert who only provides very general opinion:
1.
ie. Police qualified as expert in drug case may provide evidence re: how drug traffickers operate
2.
exclusion order probably applies
3.
3) Expert evidence given after examining the person’s history (ie. opinion relies exclusively on the
strength of the reports)
1.
Exclusion order probably applies
4.
4) Expert whose opinion relies on testimony observations of CO/AC as a witness:
1.
E.g. McLellehan case: Crown wanted to call expert to challenge NCR defence, but defence
would not allow Crown expert to examine AC. Crown expert observed AC’s testimony & cross,
as well as defence expert’s testimony & cross. Crown expert then gives opinion on the basis of
that testimony/observations.
2.
Expert can provide an opinion on the basis of the observations during the proceedings
3.
Exclusion order is lifted
5.
5) Expert whose opinion relies on hypothetical facts:
1.
2.
Counsel puts to the Dr. a series of hypothetical’s. Based on that, they ask questions, then the
opinion follows. The foundation for hypothetical’s must be supported in the evidence…
otherwise the weight of the opinion is reduced.
E.g. impaired driving case: if defence expert does not sit through entire trial, then he will be
given hypothetical facts on which to base his opinion: “I want you to assume the following – if a
165 lbs. male has consumed this amount of X, Y, and Z, what would be your opinion as to….
CROSS EXAMINATION OF EXPERTS: Experts can only be cross examined upon the literature that they admit have
authority.
> only if the expert recognizes the authority (text, article) can you cross the expert on the material/view held in the
literature.
> if they don’t recognize the authority of the work, then you cannot put that work to the witness at all. (but not
recognizing certain leading authorities will effect the credibility of the expert and render their testimony useless)
> There are three (3) ways to attack expert opinion evidence:
1.
1) Attack his scientific theory
2.
2) Attack his methodology
3.
3) Attack the factual foundation that he is basing his opinion on:
1.
The weight of expert opinion evidence depends on the extent to which it is based on admissible
evidencethis is the best option
FACTUAL FOUNDATION OF OPINION
The expert opinion is only as good as the foundation on which it rests. This is the "Abbey Problem"
R. v. Abbey (1982) SCC
Facts: Accused caught importing drugs. Claimed he teleported (NCR was advanced). Defence expert conducted interview
and based his expert testimony on it. The accused did not testify to the truthfulness of the information given to the
pysch (ie. history of delusions, having seen a psych before, history of weird behaviour. Defence called no witnesses to
confirm these claims.
Held:
• Doctor’s evidence was given no weight as it was based entirely on information communicated to him during clinical
interviews with the accused, and thus based solely on Hearsay since there was no testimony or other evidence provided.
Reasons:
• Before any weight can be given to an expert's opinion, the facts upon which the opinion is based must be found to
exist. Where an expert’s opinion relies exclusively on hearsay testimony, and there is no foundation for his opinion, it has
NO weight.
• Expert opinion is only as strong as the foundation to the opinion (you must be able to establish by admissible proof the
foundation for your opinion)
R v Lavalle (1990) SCC
Facts: (battered wife syndrome case) – similar circs as Abbey. Accused did not testify and expert’s opinion based solely
on clinical interviews. HOWEVER, the Crown was forced to tender the police statement given by accused into evidence
to prove ID (it contained some information about the abuse that provided a foundation for the experts evidence). This
allowed it to be put to the jury.
Ratio: Expert opinion evidence must have a foundation based on some admissible evidence.
• Judge must warn the jury that the more the expert relies on facts not proven, the less weight they may attribute to his
opinion.
NOVEL SCIENCE
R v J(JL) (2000) SCC (Must be careful with Junk Science)
Facts: D sought to call expert opinion suggesting that the accused was not the type of man to commit sodomy acts.
Held: Expert not qualified (inadmissible evidence)
Reasons:
• Expert evidence will be treated as ‘novel science’ where there is no established practice among courts of admitting
evidence of that kind, or where the expert is using an established scientific theory or technique for a new purpose.
• Where the expert opinion is based on a novel area of expertise, it ought to be subject to special scrutiny to increase
reliability:
1. Can the theory proposed be tested?
2. Has the theory been subjected to peer review and publication?
3. Is there a known or potential rate of error, or the existence of standards?
4. Whether the theory or technique which has been used is generally accepted within the scientific
community.
> in this case, the science behind the claims was not/could not be tested (unreliable) and it would have been more
prejudicial than probative (failed the Mohan test)
> Additionally, if expert evidence comes close to expressing an opinion on the ultimate issue – it will be treated with
special scrutiny as well.
PROCEDURAL RULES ON EXPERT EVIDENCE
Criminal Trials s. 657.3(3) CC
Crown Intends to call an expert:
- Must disclose this fact and provide the experts’ CV 30 days prior to trial starting, and
- Within a reasonable period, provide the expert’s report (or a summary of the anticipated opinion) and the
ground upon which it is based, to the defence prior to the trial.
Defence Intends to Call:
- Must disclose this fact and provide the experts’ CV 30 days prior to trial starting
- BUT, no requirement to give the report prior to the trial; only must provide the report no later than the close of
the Crown’s case.
Civil Trials
218.1(1) At least 120 days before the day the trial commences …serve on other parties to the action
(a) a statement of the substance of the evidence, signed by the expert, including the expert’s opinion, the expert’s
name and qualifications, and a statement from counsel setting out the proposed area of expertise for which qualification
as an expert will be sought, and
(b) a copy of any expert’s report, signed by the expert, on which the party intends to rely.
(2) The party serving the expert’s report may, at the same time, also serve notice of intention to have the report
entered as evidence without the necessity of calling the expert as a witness.
POLYGRAPH EVIDENCE
R v Belland and Philips
Facts: Both testified that they did not do the robbery. They wished to call the evidence of their polygraph to buttress the
claim that they didn’t do it.
Held: Polygraph evidence is inadmissible because:
- Offends rule against Oath Helping (evidence solely for the purpose of bolstering a witness' credibility)
- Offends the rule against prior consistent statements
- Would offend rule against character evidence (that he is good because he didn't lie)
- Assessing a witness’s credibility is a job for the TOF, expert is not necessary.
EXCLUSION ORDERS
CRIMINAL TRIALS
CIVIL TRIALS
Exclusion orders are mandatory if the Crown or Defence ask
for it (or judge can just do it)
Exclusion order does not apply to the accused (unless really
Rule 247 Rules of Court: Exclusion order is Permissive, Not
Mandatory (judge decides)
Even the parties to the action may be excluded if they are
bad behaviour) Rule in practice: call the accused first so no
going to later testify
issue as to him tailoring his evidence
If witness breaches the exclusion order, the witness can still In case of Breach, Judge may not hear witness at all
testify, but the judge will instruct the jury to give the
testimony less weight R. v. Dobberthien
- accused should testify at the beginning of the defence case (if you call him last… he sat through the entire case and
heard all evidence… Crown can suggest it has been modified and is less worthy of belief)
In some cases, experts will be allowed to watch the accused in the courtroom to form an opinion.
R v McLellehan: Crown psychiatrist changed his mind and agreed with defence expert after watching the
accused in the courtroom
PRIVILEGE
Privilege: the right for a witness to refuse to answer a question or to provide information which is clearly relevant.
• SCC has converted 2 types of privilege into principles of fundamental justice under section 7 of the Charter:
1.
1) Solicitor-client privilege
2.
2) Privilege against self-incrimination
2 Types of Privilege:
[1] Class Privilege:
• Prima facie this type of privileged communication is inadmissible. The party seeking admission must show a
compelling reason why the privilege should be set aside
- 4 heads of class privilege (closed heads)
1. Solicitor/Client Privilege (most important)
2. Spousal Privilege
3. Informer Privilege
4. State Privilege
[2] Case-by-Case Privilege:
• If you are not in a class privilege communications are prima facie not privileged and admissible
• Party seeking exclusion of it has the onus of showing that the communication ought to be privileged
- E.g. Doctor-patient; priest-parishioner, journalist-source
Wigmore Criteria for case-by-case privilege (hard to meet – court favors disclosure)
1. Communication must originate in a confidence that it will not be disclosed
2. This element of confidentiality must be essential to the full and satisfactory maintenance of the relationship
between the parties
3. The relationship must be one which is in the opinion of the community ought to be fostered
4. The injury to the relationship by the disclosure must be greater than the benefit gained for the correct disposal
of litigation.
Slavutych v. Baker 1975 SCC
Facts: UofA Prof provides confidential assessment of one of his colleagues. It was a harsh assessment. This assessment
was disclosed to the administration who put the colleague under disciplinary proceedings for his behavior.
Issue: Should Slavich’s conversation be disclosed?
SCC: The assessment should have been given privilege on a case-by-case basis on the Wigmore Criteria
s.672.21(2) “Protected Statements” e.g. Mental disorders
Statements made by an accused for the purpose of an assessment/treatment directed by the court will be inadmissible;
but 3(f) provides exception for ‘challenging the credibility of an accused…where the testimony of the accused is
inconsistent with the protected statement’
Intercepted Communications s.189(6) of CC: statutory protection for privileged information that is intercepted
LOSS or WAIVER OF PRIVILEGE
Privilege is not absolute. It can possibly be waived by the party who holds it, or it can be lost. 5 principles:
1.
1) The Holder of the privilege has the right to waive it
2.
2) waiver can be either explicit or implicit
3.
3) if waiver is implicit, it must be based on:
1.
(a) intention
2.
(b) considerations of fairness & consistency
4.
4) implied wavier will be found where witness asserts that, as a result of receiving legal advice, they
took certain actions based on that advice. Once claiming to act on the opinion of their lawyer, the Court
would likely find that witness has impliedly waived the privilege & communication no longer privileged
(Campbell & Shirose 1999 (SCC))
5.
5) if privileged information is inadvertently disclosed:
1.
(a) traditional common law approach: privilege is lostRumping v. DPP (1962) HL
2.
(b) modern approach: law of privilege is substantive & not just procedural. Thus, inadvertent
disclosure will not automatically extinguish privilegeDescoteaux v. Mierzwinski
SOLICITOR-CLIENT PRIVILEGE
• The strongest head of privilege
• Solicitor-Client Privilege covers
• This privilege covers everything that goes on in the lawyers office (all staff are under the tent of privilege). It covers
professional conversations with anyone seeking advice (the conversation as well as identity is covered).
• It covers even conversations at first instant (prior to retainer).
• Even the size of the lawyer’s fee is privileged (Maranda & Reiche)
• Privilege survives the death of a client
• Privilege does not sanction the use of the law office as an evidence bank. Ie. Hamolka Case > lawyers have a duty to
turn over any evidence brought to them (can be done by 3rd party lawyer with whom privilege also applies in order to
not give away the ident of the party and their lawyer).
EXCEPTIONS to Solicitor-Client Privilege:
[1] Advice on the commission of an offence
• Privilege does not protect communications where the purpose is to commit a future crime, in furtherance of a crime or
to circs in which the lawyer & client are involved in criminal conduct.
[2] "Innocence at stake exception"
• Privilege yielding (in rare circs) to the accused's right under s.7 to make full answer and defence
• "The only way to establish the accused’s innocence, is to encroach on the solicitor client privilege of another"
McClure Test (From Benson v. Brown, but originally formulated in R. v. McClure)
o Each element on in this test must be proved on a BoP
1. THRESHOLD TEST
a) The information sought from the privileged communication is not available anywhere else (Quality of
the evidence is not a factor)
b) Accused cannot raise a RD without this information
2. INNOCENCE AT STAKE TEST
a) Stage 1: Accused must show an evidentiary basis that a communication exists that COULD raise a RD as
to his guilt
b) Stage 2: If evidentiary basis exists, judge examines the communication to see if in fact, it is LIKELY to
raise a RD (The burden in this stage is much harder than in Stage 1 because of the word likely)
Scope of Disclosure
[1] If the accused passes the McClure test, there is a strict limit that it is only a particular part of the communication that
will be given to the accused (the relevant part)
[2] the communications are NOT given to the Crown (at this stage).
[3] Immunity of the Privilege Holder (person whose solicitor-client privilege is breached)
• “Use Immunity" - The communication obtained CANNOT be used as evidence in a later prosecution of the privilege
holder
• "Derivative Immunity" – Any evidence found as a result of communications, that would not have otherwise been
discovered in the course of normal investigation, is excluded from being used at later trial (evidence derived from
breach of privilege cannot be used to prejudice the accused).
• The Privilege Holder does NOT get “Transactional Immunity” (barrier to prosecution) – the holder can be later charged
(but the disclosure or derivative evidence cannot be used at trial).
Brown v. Benson (R. v. Brown) 2002 SCC
Facts: Brown charged with murder. Benson's girlfriend tells police that Benson confessed the murder to her, and also to
his lawyer, in her presence. Police interview Benson who denies this.
Held: SCC overturned the trial judge’s interlocutory order for production of the lawyer's notes during the interview of
Benson as the Threshold Test is not met.
Reasons:
Threshold Test
a) Available from some other source?
- Ruling was premature: judge ought to have held a voir dire to determine whether there were other sources
before concluding that the requested information was not available elsewhere:
o Also judge should have determined the admissibility of the girlfriend's testimony (might have been
admissible under exception to hearsay e.g. declaration against penal interest)
o Determine whether Benson waived his solicitor-client privilege by telling the girl about his
solicitor-client communications and having her present in the meeting with his lawyer.
- QUALITY is NOT a factor (The lawyers obviously were more credible than the girl friend). This is irrelevant she is A source, meaning that the privileged evidence is not the only source)
b) Otherwise unable to raise a reasonable doubt
- Ruling was premature: Application was pre-trial - difficult to see if the Defence will be able to raise a RD
when we haven't even heard of any of the other evidence. (should be brought at the earliest at the end of
the Crown's case)
Important Points:
• Impeding the solicitor-client privilege is an extraordinary measure, a last resort
• The McClure application will fail if there is a different source available, even if the quality of the evidence from that
source is less than would be attained by breaching solicitor client privilege.
• It is premature for a judge to make a ruling on a McClure production order without first hearing the Crown's case, and
without determining in a voire dire whether the evidence could come from a different source.
• The rules for admissibility may be relaxed (ie. around hearsay) if it is the accused who is seeking to admit evidence.
Search Warrant for a Lawyer's Office
R. v. Lavallee et. Al. 2002
S.488 was struck down as non-CON. It remains in the Code. The CL now governs the search of a lawyers office. .
- Problems with s. 488: 1) Privilege can be lost default 2) AG may, with the judge's permission, inspect the
document
New Procedure for searching a lawyer's office
1) No search warrant can be issued with regards to documents known to be protected by solicitor-client privilege.
2) The authorities must establish that there is no other reasonable alternative to the search.
3) The judge who issues the warrant must be rigorously demanding as to maximize the privilege. (Warrant must contain
some strong directions regarding what the police should do to protect the privilege)
4) All documents in possession of a lawyer must be sealed before being examined or removed from the lawyer’s
possession.
5) Every effort must be made to contact the lawyer and the client at the time of the execution of the warrant. Where
they can’t be contacted, a representative of the bar should be allowed to oversee the search.
6) Police should report to JP their efforts to contact all privilege holders. Holders must be given reasonable opportunity
to assert claim of privilege. If they do, it must be then decided by a judge
7) AG can make submissions on the issue of privilege, but cannot inspect documents beforehand.
8) If sealed documents not privileged, only then can they be used for the investigation.
9) If documents found to be privileged, they must be returned immediately to holder of privilege, no copies can be
made.
Litigation Privilege
Communications between a lawyer and 3rd persons if litigation has been commenced or is anticipated, and the dominant
purpose for the communication was for use or advice in the litigation
- This is information obtained by and for the lawyer during and in contemplation of litigation. It is differentiated from
solicitor/client privilege as follows:
1) the rationale is not to protect the relationship but to facilitate the adversarial process (keep the fruits of their
preparation from the other side)
2) used only in the context of litigation, not all types of legal advice
3) ends with the litigation
4) communications need not be made in confidence
> it is less important that solicitor/client privilege therefore more easily overridden
- test for Litigation privilege is the “Dominant Purpose Test”
Whether information is protected by litigation privilege = “Dominant Purpose Test” (document can be prepared with
more than 1 purpose in mind, but the dominant 1 must be that of obtaining legal advice in contemplation of litigation)
o
Consider whether the document results from research/exercise of skill by the lawyer. If so, this may
disclose litigation strategy, in which case the document is protected.
[3] Public Safety
There is an ethical obligation to disclose privileged information where there is threat of death or bodily harm:
Smith v. Jones
Facts: Crazy (Buffalo Bill) type guy. He had a pit in his basement. His lawyer hired a psych to examine him (the Dr. falls
under solicitor-client privilege and can only tell lawyer). The Dr. was concerned with the danger of accused, he was
psychotic about a plan to kill as many hookers as possible.
Held: Solicitor-Client Privilege yields to public safety if 3 criteria are met:
1.
Is there a clear risk to an identifiable person or group of persons?
2.
Is there a risk of serious bodily harm or death?
3.
Is the danger imminent?
[4] Law Society Proceedings
Lawyer subject to Law Society disciplinary hearing proceedings has no Charter protection or solicitor-client privilege
- Witherspoon In the context of professional disciplinary proceedings, the Charter has no role to play.
- Legal Profession Act Lawyer cannot advance privilege when going under disciplinary proceeding
SPOUSAL PRIVILEGE
• Generally a spouse is an incompetent and non-compellable witness in both Criminal and Civil proceedings BUT,
privilege of spouse is more broad.
• 4(3) of the CEA states: “No husband is compellable to disclose any communication made to him by his wife during their
marriage, and vice versa.” (goes the same for adult interdependent partners, BUT not CL’s)
> spousal privilege applies to communications BUT *not observations. Made during the marriage, by the spouse (or AIP)
• Spousal Privilege ends with death or the ends of the marriage.
• Spouses ARE competent & compellable for a certain amount of cases (ie. DV, uttering threats, some sex offences). In
these cases the spouse can still rely on spousal privilege (ie. can refuse to tell about the threat uttered).
> Spouses can waive privilege.
INFORMANT PRIVILEGE
The identity of the informant who reveals information to police is protected by privilege (only his identity is protected,
not the information provided, unless the information could reveal his identity)
- This privilege is ONLY breached if innocence is at stake if the identity of the informant is not disclosed
o If Crown is ordered to disclose the informant’s identity, they typically just stay the proceedings (the
Crown will never expose an informant)
R v Baros- EPS member became private detective. He was retained by lawyer to track down and ident an informer in his
case. If he can ID the informer, the lawyer can use that to leverage a stay from the Crown.
> SCC held that there was nothing wrong with what the lawyer and ex-cop were doing.
STATE PRIVILEGE – Public Interest Immunity
• Cabinet documents, matters involving national security, techniques used by police in investigating crime
Quasi Privilege – Statutory and at CL
*3rd party records are always on the exam (first step is to differentiate between sex & non-sexual regimes)
Third party records: AC seeking access to records held not by Crown but by 3rd party which AC believes will assist his
case. e.g. therapeutic records, employment records, prison records, school records. As per Stinchcombe, the Crown
must disclose all relevant information already in its possession.
How does AC obtain 3rd party records?
• Defence lawyer has no search or seizure powers
• Defence lawyer could ask the Crown to do it, but Crown under no obligation
• But defence lawyer has power of subpoena —court order which compels person to attend court and bring relevant
records
• Once a 3rd party shows up in court with the records, must decide 3 things:
1) production to the court
2) production to the AC, and/or the Crown
3) even if production is ordered, that evidence must then be admissible
• Test for production to court & to AC differs for 3rd party records in sexual assault cases and for all other criminal
cases.
• There are 2 different regimes for disclosure of 3rd party records
1) R v O’Connor- CL scheme governing disclosure of 3rd party records in non-sexual cases (more liberal)
2) Bill c-46 – statutory scheme governing disclosure of 3rd party records in sexual cases (more restrictive)
R v O’Conner (1995 SCC)
Facts: Priest accused of sex assault. Crown was in possession of the therapeutic records of complainants. The defence
sought an order compelling their disclosure. Crown elected not to disclose. Defence sought a stay, which was granted.
Held: In this case, 3rd party records should have been produced (overruled by Bill C-46)
Decision:
1) If the 3rd party records are already in the possession of the Crown, then prima facie the privacy is gone and the
evidence should be disclosed to the defence as per Stinchcombe provided they are relevant (requires Crown to disclose
anything that MAY have relevance - essentially all records will be relevant if they are in possession of the Crown).
> If the Crown views the records as not relevant and the defence still desires their production, they can seek a
Stinchcombe Order/Production Order (the threshold is.. “a reasonably possibility that the record may be of use to
the defence- a low threshold).
2) if the 3rd party records are not in possession of the Crown, there is a POFJ to privacy. This will require the defence to
meet the O’Connor test for 3rd party record production.
O'Connor Test for Compelling 3rd Party Production
1. PRODUCTION STAGE (judge does not have access to records yet)
• Accused must show that the information he is seeking is "likely to be relevant" to an issue in the case
• Likely Relevant: The judge must be satisfied that there is a reasonable possibility that the info is
logically probative to:
o an issue at trial or
o to the competence of a witness to testify
--> Not an onerous standard (but there must be something to prevent fishing expeditions)
• Not concerned with admissibility at this stage (no weighing of the salutary/deleterious effects of disclosure)
2. DISCLOSURE STAGE (judge examines the records)
• If judge is satisfied that the information is relevant (stage 1), he will inspect the records to determine whether
he ought to make an order and to whom the documents should be disclosed:
Salutary vs. deleterious effects of making a production order
--> BALANCING factors:
1. Is it necessary for the accused's full answer and defence? (ie. Witness’s MH at the time)
2. What is the probative value of this record? (e.g. is it a comment in a report or a psych assessment?)
3. What is the nature and extent of the reasonable expectation of privacy? (There are varying degrees
of privacy: school attendance vs therapy vs prison records)
4. Would the order be based on a discriminatory belief or bias? (ie. Twin Myths)
5. What is the potential prejudice to the dignity of the complainant OR the security of the complainant
or their privacy rights?
 there are some ways to reduce prejudice (screen testifying, closing court, publication bans, etc)
3. Admissibility Stage This is not an actual step in the case, but practically it is done  Just because these records
have been ordered produced, the judge must still decide if they will be admitted into evidence
Bill C-46
Immediately following O’Connor, Parliament passed Bill C-46, adopting the minority view in O’Connor
- Weighing of competing interests ought to occur at the first & second stage
- Added the minority dissent’s three further factors, that were rejected by the majority
- Applies even for documents in possession of the Crown
- Added “interests of justice” to “likely relevance” at the 1st stage (higher threshold & requires balancing of
sal/del effects – without allowing the judge access to the docs)
- Many constraints, and it is rare to produce 3rd party records in SA cases
278.1 Broad definition: 3rd party record: "anything that contains personal information for which there is a reasonable
expectation of privacy" – includes, but is not limited to med, psych, therapeutic, counselling, education,
employment, child welfare, personal journals & diaries (does not include records made in course of investigation)
278.2 No records relating to a complainant or W shall be produced in proceedings of:
(1) a) sexual offences; b & c) historical sexual offences
(2) Bill C-46 applies even when the records are already in the possession of the Crown (despite Stinchcombe)
(3) The Crown must tell the Accused that they have a record, but not disclose its contents (put them on notice)
STEP 1 ---> Establish "LIKELY RELEVANCE" to an issue (factors for whether likely relevant + weigh effects)
278.3
(1) Accused seeking production of record makes application to the trial judge
(2) no application can be made to preliminary inquiry judge, pre-trial, or any other presiding judge at other proceedings
(3) Establish "Likely relevance" (apply in writing setting out grounds showing likely relevance)
(4) Enumerates *a series of grounds that are NOT insufficient on their own to ground an order of production (ie. psych,
med, treatment/counselling records, a record relating to subject matter, *prior inconsistent statements, records
relating to credibility or reliability etc)
(5) Accused must give notice to Crown, person in possession of record, Co/W, others to whom it relates, & accused
must serve a subpoena to the person in possession or control of the record
278.4
(1) Judge holds hearing in camera to determine whether to order production
(2) person holding the information or others to whom the record relates can make submissions at the hearing but they
are NOT compellable
*278.5 (stage 1)
(1) Production order will be made by the Court if the judge determines that:
a) The record is likely relevant to an issue at trial or to the competence of a witness to testify and
b) (Addition to O'Connor) "production of the record is necessary in the interest of justice"
(2) Judge must consider the salutary vs deleterious effects on accused’s right to make full answer/defence and right to
privacy.
• 8 Factors (First 5 are from O'Connor, last 3 are from Dube’s Dissent)
a) the extent to which the record is necessary for the accused to make a full answer and defence
b) the probative value of the record
c) the nature and extent of the reasonable expectation of privacy with respect to the record
d) whether production of the record is based on a discriminatory belief or bias
e) the potential prejudice to the personal dignity and right to privacy of any person to whom the record relates
f) society’s interest in encouraging the reporting of sexual offences
g) society’s interest in encouraging the obtaining of treatment by complainants of sex offences
h) the effect of the determination of the integrity of the trial process.
STEP 2 ---> WHETHER TO ORDER PRODUCTION to the Accused and/or the Crown
1.
(1) Where the judge is satisfied of the likely relevance & necessity in the interests of justice, the judge may order
production to the accused.
(2) to determine whether to produce the record, go through salutary vs. deleterious effects again (list of factors above)
(3) May order that the record be edited, record be viewed only at court etc.
(4) record must be provided to the Crown – unless the judge determines it is not in the interests of justice to do so
o The judge must review the record and determine whether the record or part of the record is likely relevant to an
issue at trial /competence of a witness and its production is necessary in the interests of justice -- Must consider
the list of enumerated factors again (creates a dubiously high burden)
278.8 Judge must give reasons for whatever decision he makes, but publication ban in effect (278.9)
278.91 Crown has right of appeal (the decision is deemed to be a matter of law)
R v Mills 1999 (Upheld Bill C 46 as Constitutional)
Issues:
1) broad definition of records
2)* the trial judge must weigh sal/del effects of the record without knowing what is in them (weighing rights in a
vacuum)
3) under 278.5(2) f-h factors were already rejected by the SCC in O’Connor
5) conflicts with Stinchcombe obligation
Reasons:
• Ongoing dialogue between parliament. Royal: Court was too quick to reverse itself - what was unconstitutional before
is not constitutional because of an "in depth study by parliament"
Dissent:
- if the Crown already has the records they should be disclosed as per Stinchcombe
Take Aways:
> the regime applies even when the Crown already has the record (unless complainant waives the right)
> Broad discretion of the trial judge: as long as judge properly articulates their reasons it will be difficult to appeal (no
appeal will succeed unless there is a palpable & overriding error)
> evidence must be provided to show that the record does exist (will often come out of prelim – ie. cross of the accused)
> the Crown can cross exam the accused on the affidavit (defence needs to provide evidence that a record exists and
must be filed in order to get disclosure) >> if drafted too broadly (ie. alludes to their defence).. the Crown can take a
free run at the accused.
Royal’s other concerns:
• prejudicing the trial judge: only a trial judge is allowed to hear such an application; however, the records could be
prejudicial to either party and poison the well for the future trial.
• splitting the trial: this application, if made during the trial, could split up the trial (jury would be told to go home for a
while) (or judge would forget what witnesses said, lose the witness impact)
• defence disclosure: the affiant may potentially have to disclose some of their defence in order to attempt to get a
production order.
• the trend toward a lack of prelims prevent an evidentiary basis from being created for the application for production
The Privilege Against Self Incrimination
• The Privilege against Self-Incrimination limits the extent to which a person can be forced to be the source of
information about his or her own criminal conduct.
• Privilege against Self-incrimination PRIOR to Trial:
• R v Turcotte affirms pre-trial right to silence that begins at the investigative stage (pre and post charge the right
to silence is absolute) (there is never an obligation to speak to police – whether witness, suspect or otherwise)
> If a suspect, never talk to the police. What you say cannot help you at all in trial (cannot enter exculpatory
statements at trial on your own behalf) (only admissions –inculpatory statements – are allowed admission)
• S.10(b) Charter right to counsel & instruct counsel without delay
> What is the obligation on police regarding 10(b) right to counsel?
- immediately tell accused upon his detention of his right to counsel and the duty counsel system (information)
- must also provide a reasonable opportunity to contact counsel as well as a mode of contact. Police must hold
off questioning for a reasonable time in order for the accused to exercise the right.
> accused must be informed if jeopardy changes (attempt murder becomes murder when victim dies) – must
inform you of right to counsel again.
R v Willier – accused could not get a hold of counsel he wanted. He did contact duty counsel and speak briefly.
> the police must provide reasonable time to contact the counsel of choice and refrain from eliciting evidence during
> if counsel of choice cannot be contacted, police must provide reasonable time to contact alternate counsel
> the accused bears a certain onus to be diligent in contacting a lawyer.
R v Sinclair – accused spoke to counsel. Was interrogated and demanded to talk to lawyer. Also wanted lawyer in the
room.
> there is no right to have lawyer present during questioning (but face to face contact will giving advice should be
permitted)
> accused is not entitled to stall interrogation by demanding lawyer again (one lawyer contact is enough to satisfy 10(b)
unless the jeopardy has changed or there is reason to suspect the suspects understanding of 10(b)).
• S. 5(1) CEA  No witness shall be excused from answering any question on the ground that the answer to the question
may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of
any person.
• In place of the right to refuse to answer, the CEA put a protection that the answers by the witness given cannot be
used against them during subsequent prosecution, for any purpose.
- S.5(2) CEA  If the witness is forced to give answers under (1), the answer given shall not be used or
admissible in evidence against him in any criminal trial or other criminal proceeding against him
- S.13 Charter A witness who testifies in any proceedings has the right not to have any incriminating
evidence given used to incriminate that witness in any other proceedings, except in a prosecution for perjury
or for the giving of contradictory evidence.
R v Henry 2005
Facts: Two accused were charged with murder. At the 1st trial, Henry testified voluntarily. He admitted to it, but pled
intoxication. At his 2nd trial (retrial), Henry testified again and changed his story, saying that he was so intoxicated he did
not remember the events.
Held: Crown is allowed to cross examine Henry on the prior inconsistent statements he made at his 1st trial since the s. 13
rights of Henry, were not violated since he volunteered to testify at both trials.
Analysis:
the purpose of s.13 is to protect individuals from being indirectly compelled to incriminate themselves
• S.13 only protects against the use of prior compelled testimony, which cannot be used to incriminate nor to attack
credibility at a subsequent proceeding
• S.13 is not available to an accused who chose voluntarily to testify (in non-compelled situations, no Charter protection)
“The Compellability Approach”
(Exception: perjury)
1. If the accused chooses NOT to testify at his current trial
Earlier testimony cannot be used against him
2. If the accused chooses to testify at his current trial
If the accused was compelled to testify in a prior proceeding, that prior testimony CANNOT be used for
ANY purpose (credibility or incrimination) – exception of civil discovery (Nedulco)
o Non-voluntary testimony ---> what you say today cannot be used in any way against you later on
If the accused voluntarily testified in a prior proceeding, that prior testimony CAN be used
o If you voluntarily testify again ---> what you said before may be used against you later
o the accused can be crossed on testimony he has previously given where his testimony has changed
because this is relevant to his credibility
* If you were compelled to testify prior, and then give a different story at your own trial… a charge of perjury is the
remedy
R v SRJ [4 judgments written; Creation of “Derivative Use Immunity”]
Facts: The accused was charged with B&E. His friend was separately charged with the same offence. The Crown
subpoenaed his friend as its main witness at the accused's trial.
Held: An accused person cannot be compelled to testify against himself at his own trial. But, he can be compelled to
testify at other proceedings, even if these deal with the same subject matter.
Reasons: (5-4 Majority) There are protections for W’s against the subsequent use of evidence derived from compelled
testimony:
4.
1) Simple Use Immunity (s. 5 CEA + s. 13 Charter),
1.
In a formal proceeding, there is no right to refuse to answer a question because it may incriminate you
2.
You have the right to not have what you say to be used against you in a later trial
1.
Crown cannot take what you said under a subpoena and use it against you later
2) Derivative Use Immunity
When the testimony of a compellable witness leads to the discovery of other evidence, that could not have
otherwise been discovered (“but for” the compelled testimony) this evidence will be inadmissible as against the
compellable witness in subsequent proceedings
1.
If it could have been obtained otherwise, the evidence should not be excluded (Crown must prove on
BoP)
PUTTING EVIDENCE BEFORE THE COURT
1) The Adversarial System is based upon witnesses who orally present evidence before trier of fact
2) Subpoena: is the mechanism that compels attendance of witness & also that witness to bring relevant documents
• Provided there is SOME relevant evidence to give, a subpoena will be issued. This is a low test to meet
3) If witness does not appear, court may issue warrant to compel appearance & can make finding of contempt
4) if witness refuses to testify or answer relevant questions, he can be prosecuted for disobeying lawful Court Order or
cited for contempt
Refusal to Testify -> Refusal to be sworn is serious --> Can be dealt with in two ways:
- Judge immediately cites them in contempt and sentence them to jail for 1-2 years
- at a preliminary inquiry - If a witness refuses, can remand that witness in custody for up to 8 days
o Adjourn the case for 8 days to give him a taste of prison -- bring him back: "do you want to testify
now?"
R v Darville- (test for an adjournment in the event a subpoena has been served and the witness fails to show)
1) There must be some clear information (evidence) that the witness is a material one (they must have significant
evidence to give).
2) There must be a reasonable expectation that the witness will attend (there must be some evidence that the
attendance of the witness can be secured)
> witness warrant if required
3) The applying party (seeking the adjournment) has not been guilty of laches (ie. negligence in trying to serve subpoena
late)
COMPETENCY AND COMPELLABILITY
• General Rule: Witnesses with relevant evidence are allowed to testify (generally all are competent and compellable)
• Competence: Will the witness be allowed to testify? 2 aspects:
1) the capacity to observe, recollect and communicate.
2) the responsibility to testify in a truthful manner.
• Compellability: Can this otherwise competent witness be forced to testify?
Issues:
COMPETENCY OF CHILD WITNESSES
[Compellability is not an issue]
- Competency is assessed at the time of testifying, not the time at which the events occurred (unlike the mentally
disabled). For children, competency at the time of event only goes towards weight
• Historically, CL Approach: If the child was unable to take an oath, could testify unsworn if they understood the moral
responsibility of telling the truth, and was able to communicate. But this could not form the basis of a conviction without
corroborating evidence.
• Statutory Modifications:
S. 16.1 CEA (Criminal Proceedings)
- There is no requirement for corroborating evidence
(1) Person under 14 is presumed to have the capacity to testify (if over 14 no issue)
(2) NO Person under 14 shall take an oath or solemn affirmation
(3) Persons under 14 should only testify if they can: (* this is the test)
- 1) understand and
- 2) respond to questions
(4) Party who challenges the capacity of a child witness, has the burden to show there is an issue regarding the
capacity to understand and respond to questions (on a BoP)
(5) If there is a capacity issue, the court shall conduct an inquiry to determine if witness is able to understand
and respond to questions.
(6) Before permitting a child witness to give evidence, require them to promise to tell the truth.
(7) But the child cannot be asked if they understand what "promising to tell the truth means". (you can ask
these types of questions on cross exam to reduce credibility)
(8) If child witness testifies, it shall have the same effect as if given under oath.
> the trial judge still has the discretion to give a child’s evidence less weight (although it would be a reversible error to
automatically discount a child’s evidence)
S. 19 AEA (Civil Proceedings)
(1) Inquiry as to whether the child understands the nature of an oath
1. If Yes – Take evidence
Leonard 1990 Test For Understanding the Taking of an Oath:
o Appreciation of solemnity of occasion
o Understanding the added responsibility to tell the truth, above and beyond the duty to
tell the truth as normal social conduct
o Understanding what it means to tell the truth in court
o Appreciate what happens, both practically and morally, when one lies in court.
2. If No – Judge must be satisfied that, in the absence of the oath:
1) The child possesses sufficient intelligence to communicate, AND
Is witness capable of perceiving, remembering, and communicating events to the court?
2) Understands the duty of speaking the truth (moral duty - it's a bad thing to lie)
(2) If the child testifies Unsworn, the case shall not be decided on this evidence unless it is corroborated (will
result in a non-suit or directed verdict)
Summary
--> In criminal trials, accused CAN be convicted on the basis of unsworn, uncorroborated evidence of a child
--> In civil trials, defendant CANNOT be found liable on the basis of unsworn, uncorroborated evidence of a child.
Thus, more protection in civil than in criminal (bizarre)
COMPTENENCE OF THE MENTALLY DISABLED [Compellability not an issue] Remember: all witnesses are presumed
competent until found otherwise
• Competence with mental disability is tested twice:
1) at the times of the event about which the witness is testifying, And
2) at the time that the witness comes to be sworn.
• Competency is determined by the judge, but credibility and reliability of the subsequent testimony is determined by
the trier of fact.
• A person cannot be deemed incompetent without first having an inquiry (R v Parrott) 2001. – no presumption of
incompetence.
• Generally, issues of competence can be raised before or during examination
R v Lisevick: Women with MH issues was the cell-mate of the accused. She heard the accused confess.
• Test: mental illness must render the witness ‘thoroughly untrustworthy’ (look at 2 points of time: at the time of the
offence OR time of trial)
- All witnesses are presumed competent until found otherwise. Mere mental disorder will not disqualify a prospective
witness.
- It is for the party alleging mental incompetency or lack of capacity to satisfy the Court that there is an issue (on BoP)
- With regard to understanding an oath and being able to communicate – the test set out in Leonard is used.
s.16 CEA (there is NO provincial provision regarding mental capacity)
(1) If a witness over 14 has their mental capacity challenged, the court shall conduct an inquiry to determine:
a) Whether the witness understands the nature of the oath/solemn affirmation (Leonard)
b) Whether the witness is able to communicate the evidence (Marquard)
(2) If BOTH (a) and (b) are satisfied, witness shall testify under oath/affirmation
(3) If (a) not met, but (b) is, witness may testify under “promise to tell the truth” (No prohibition regarding questioning
the mental person if they understand the nature of the truth)
(4) If neither (a) or (b) at satisfied, witness shall not testify.
(5) Party challenging capacity has burden to show that there is an issue of capacity of witness to testify under
oath/affirmation, on a BOP
The threshold for admitting the evidence is very low (difficult to get the Mental person’s evidence excluded)
o Does the condition substantially negative the trustworthiness of the evidence?
o Mere mental disorder will not disqualify a prospective witness.
Note: S.16 only applies to mental people over 14 years old. For a person suffering from a mental disability under 14
years, we don't know what the situation would be regarding this inquiry (May have to comply with both sections)
PARTIES TO THE PROCEEDINGS
Civil Trials
AEA s.4: Parties are competent and compellable at the instance of themselves or opposing party. So too are their
spouses (subject to spousal privilege)
Criminal Trials
The accused
o is not competent or compellable for the Crown to call, but is for the defence.
Co-Accused - is competent, but not compellable regarding the other co-accuseds.
o If the evidence of one of the accuseds in needed by the Crown or the other co-accused, seek separate trials
(severance)
1. If they are charged separately, they are competent and compellable against each other at the instance of
the accused and the Crown
2. R. v. S(RJ) Use immunity and derivative use immunity as protection for separately indicted/tried accused
that is compelled as a Crown witness in the other proceeding.
>> the criminal accused who testifies in parallel civil proceeding will have no immunity from the testimony given.
• Considerations for the Crown when deciding to try individual separate:
1) Does the Crown need the evidence of one against the other?
2) Is this Need for Evidence overborne by the public interest in convicting all the accused and in one joint proceeding?
3) Is there a risk of inconsistent verdicts if we proceed separately?
4) Is the proposed witness credible; which is the more credible; which accused is ‘wanted’ more by the Crown?
5) Will there be a refusal to be sworn or a refusal to testify?
6) Is there corroboration available to the Crown? (to support the co-accused’s story)
7) How will a forced cut-throat defense work its way out? (if we leave them together will they blame each other)
8) Could the accused get a severance in any event?
9) How ought the various accused be listed on the Indictment (Remember that an accused who is listed first on the
Indictment cannot revisit his decision to call no evidence once the various co-accused listed after him have elected to
testify)
- A gets to elect first, if he declines to testify … and then B testifies and blames A… A cannot get up and testify in order to
rebut B’s claim. The election is final. What B says is evidence at large in trial… admissible against A as well.
• If an accused is charged separately from his co-accused, by election or at the instance of the Crown:
o He has Wigmore’s 3 HORNS of Triceratops:
.1. Can Refuse to testify (contempt of court – max 2 years in jail)
.2. Can Testify, but testify untruthfully (perjury – max 5 years in jail)
.3. Can Testify truthfully – but runs risk of self incrimination/harmful disclosure of any defence
Royal: most people facing high jail time refuse to testify (rather have 2 more years and not live in PC)
SPOUSES OF THE PARTIES
Civil Trials (You can get them in the box, but they have spousal privilege so no need to disclose communications of the
marriage – only obliged to talk about observations)
s. 4(2) AEA: spouses (includes interdependent partners) are both competent and compellable
o But, s.8 AEA: However, they are not compellable to disclose communications which arose during the course of
the marriage or AIP: Note: this spousal privilege is broader than criminal spousal privilege as it recognises AIPS
Criminal (Canada Evidence Act)
*No Marriage, No issue: Remember that “spouses” for criminal case purposes includes only legally married people (due
to changes in Marriage Act – this does include same-sex married couples).
• S.4(1) Accused and his spouse are both competent for the DEFENCE.
1. R v Koester: in addition to being competent, a spouse is compellable for the defence.
o
Exception to spousal compellability: multiple accuseds. The wife of AC1 is competent to testify on behalf of
another, but cannot be compelled to testify. (i.e. one co-accused cannot force another’s spouse to testify)
• Spouse is generally incompetent and not-compellable by Crown.
> But, Spouse is both competent and compellable by CROWN if:
o Accused is charged with a specified offence listed in the s. 4(2) CEA
o Accused is charged with specified offence listed and the victim is under 14 s.4(4) CEA
• S. 4(3) –Spousal Privilege – oral communications from the duration of the married can be refused even if a competent
and compellable witness (but must disclose observations)
• S. 4(5) CEA - Spousal non-competence, non-compellability is lifted for the Crown where the accused is charged with an
offence where the victim is the spouse and the offence involves the spouse’s health, liberty or person (ie spousal
assault)
R v Salituro 1991 (check fraud on wife)
• Spouses who are irreconcilably separated are competent and compellable. Being Merely separated is NOT enough!
• If there is no marital harmony to protect.. then the policy behind spousal incompetency is null.
> 4 sub-categories of relationships within marriage (spouses who are NOT together)
1. Irreconcilable marriage and the person is willing to testify (as in this case) (Competent (compellability not
an issue))
2. Irreconcilable but the person is unwilling to testify (Competent and court will likely find her compellable)
3. Merely separated and willing to testify (Not competent nor compellable)
4. Merely separated and not willing to testify (Not competent or compellable)
• Voir dire must be held to determine of the couple is merely separated or irreconcilably separated on a BoP.
o First inquiry, even if living apart, is “are they irreconcilable separated or is there still chance they'll get back
together?”
R v Couture 2007 (spousal competency rules affirmed)
*evidence will be inadmissible if its admission would undermine the spousal incompetency rule (Even if the principled
approach to hearsay was met, it would NOT trump spousal incompetency if the marriage was not irreconcilable)
R v Hawkins & Morin: stated that hearsay evidence can be admitted under the principled approach if it meets the twin
criteria of necessity and reliability AND if its admission would not undermine the spousal incompetency rule or its
rationales.
SPOUSAL PRIVILEGE (not the same as COMPETENT/COMPELLABLE)
- arises when the spouse is in the witness box
• The receiving spouse cannot be forced to disclose communications made to him during the course of marriage (pre or
post-marital statements are not protected) * the receiving spouse holds the privilege and can waive it.
- all communications of the spouses fall unto the privilege (verbal and written communications)
- However, observations of the spouse do not fall under privilege
Features of Spousal Privilege
1. Spouses must be legally married (CEA)
2. Protects communication DURING the marriage only (CEA) (AEA – also during relationship)
- Privilege ends at the termination of the marriage
- Communications before the marriage or in after divorce are not privileged
- If communications are made during the marriage, but by the time of the trial, they are divorced or
Irreconcilably separated, the communications are not privileged (irreconcilably separated spouses are
competent to testify, as there is no policy interest, i.e., no bond of marriage left to protect (R. v. Salituro
(1991) SCC))
3. Applies to communications, NOT observations E.g. husband asks wife to put bloody shirt in the laundry; the
request from the husband would be privileged, but not what she saw, or her action.
4. Applies to "confidential communications"
- If the spouse makes the privileged statement to someone else, that spouse has waived the privilege.
- If the spouse makes a statement to his whole family, that is not intended to be confidential
EXAMINATION IN CHIEF
• Generally: use open-ended rather than leading questions when examining own witness. (Can use leading questions for
introductory matters or non-contentious issues)
- Allow witness to tell evidence in their own words; questioning party has less control as to the content of the
responses
- Because of lack of control, pre-trial briefing of your witness is a good idea
• Leading Questions: Q’s which either suggest the answer (Ie. what color was the blue hat) or assume that their has
already been evidence given on a certain point E.g. “what colour was the hat the guy was wearing?” (when the fact that
he was wearing a hat has not yet been established)
-
Answers from leading questions have little persuasive effect
REFRESHING MEMORY
• Tools for refreshing memory (e.g. written witness statement, videotaped or recorded statement)
- Pre-Briefing:
o The tool reviewed can only be material that the witness has created herself (if the witness looked at
a tool that was not created by them, it might affect the weight of their testimony)
- 1st question in EIC: "what material did you look at before you came here today?"
• Any material used pre trial by the witness, any material used to refresh memory , must be given to your opponent.
• 2 methods of “refreshing” the witness’ memory: Present memory revived & Past recollection recorded
Present Memory Revived
• Goal: aid in the recollection of memory. The memory will hopefully be revived by a review of previous statement and
then is given to the court as viva voce evidence.
• The tool that aided in recollection will not be tendered as a full exhibit
• Requirements: there must be a GENUINE NEED of the witness to review the document to refresh their memory >>
therefore counsel must lay the foundation in order to get permission for the witness to review the document.
[1] Notes should be recorded by the witness (need not be physically recorded ie. you shout to your friend the license
number and get him to read it back to you while you authenticate it)
- Did you make those notes in connection with this investigation, in your own hand, at or near the time of the
offence?
- Any deletions or alternations to the notes since you made them?
- Do you require those notes to refresh your memory?
[2] Contemporaneity Written at the time or near the time of the incident.
[3] Necessity: witness needs memory refreshed. There must be a need for the witness to review the document (Request
to review the statement must come from her)
- Do you need to refer to your notes to refresh your memory?
- Subject to Milgard 9(2), if the witness does not request to see it, you cannot show it to them.
- witness cannot simply read from the doc.. they must refresh memory (the doc should be removed after it has been
reviewed)
Past Recollection Recorded
• The notes/document becomes the record containing the evidence; is marked as a full exhibit and this is a substitute for
the witness's memory (difficult to cross-examine) – the record goes in for the truth of its contents
• If you want to do this there must be a demonstrated NEED and the criteria must be very strictly followed
• Used when the witness does not have a present memory and it cannot be revived simply by showing them the
document (ie. inventory records)
Requirements for past recollection recorded: R v Fliss
1. The past recollection must have been recorded in some reliable way;
2. At the time, it must have been sufficiently fresh and vivid to be probably accurate;
3. The witness must be able to now assert that the record accurately represented his knowledge and recollection
at the time. Usually, require the witness to affirm that he “knew it to be true at the time”;
4. The original record itself must be used if it is procurable/available.
CROSS EXAMINATION
“Greatest weapon in English CL” is the right to face your opponent.
• Four (4) Goals of Cross-examination:
1) To bring out evidence which is helpful to you on the substantive issues raised by the case or that which is harmful to
your opponent on such issues.
2) To impeach the credibility of a witness / to weaken the quality of their evidence by a cross-examination focused on
their testimonial factors.
3) To elicit evidence which adversely affects the credibility of a witness who has already testified or one who is yet to be
called.
4) A good cross should focus the Court’s attention upon those areas of the matter in dispute which require close
examination by the trier of fact.
Party has a right to cross examine all witnesses who are adverse in interest to that party:
- Witness called by opposing party, even those who appear 'friendly'
- Witness you have called, if declared “hostile”
- Witness called by co-accused or co-defendant
o Co-accused is deemed adverse in law to the other co-accused R v Vanderbeek
If co-accused decides to testify, their evidence is “at large" (the statement given by one co
accused to implicate the other, while not in the witness box)
o Crown will always cross-examine last (batting cleanup)
Duty to Cross Examine (aka. The Rule in Brown v. Dunn)
• If you intend to suggest in your own case that a witness called by your opponent was either lying or mistaken with
respect to the incident about which they are testifying, then you must, in cross, out that suggestion to the witness so
that he or she can meet it.
(ie. Before the accused testifies that there was consent – the possibility of consent must be put to the witness so that
she can have a chance to address it)
OR
(Before you can prove a prior inconsistent statement, you must first put the statement to the witness.. to see if they will
admit making the statement and what reasons for doing so they will give)
 cannot simply spring something on the Court without first putting it to the witness/complainant
• The rule can be relaxed in cases of child witnesses or when D has prior notice (ie. has already been set out in civil
pleadings)
Some limits on Cross examination/Scope of Cross
• Crossing techniques are generally broad; No limit at all to asking leading questions: "I suggest to you that" . Allowed to
cross on integrity and credibility (ie. can cross on the witness's lifestyle, though this is character, it is going toward W's
credibility).
• But the accused cannot be crossed on this i.e. cannot cross on his lifestyle or credibility unless they themselves have
brought it into issue.
Limits: *remember that Judges have discretion to intervene
o Must be relevant at least in some way to either substantive issues, credibility, sincerity or integrity.
o Cross examination of accused must not relate to the character of the accused who testifies, unless they inject
character into the trial. But, s. 12 of the CEA: accused can be cross-examined on their past criminal record (going
to credibility), unless the accused obtains a successful Corbett ruling.
o Cannot invite inadmissible evidence
o Cannot be repetitious, vexatious or insulting; must have common politeness
o Can’t make suggestions you know to be false, or make reckless suggestions without any basis.
• objections for cross: relevance to substantive issue in the case OR the witnesses credit, repetitious (asked an
answered), cannot invite opinion/hearsay
• to approach a witness in the box at all… you need leave of the Court
• Always keep in mind the rule of collateral fact (you are stuck with the answers on questions of collateral fact) – cannot
call rebuttal evidence. BUT most witness don’t know the rule - you can create the impression that the witness should
tell the truth (because they think you can call contradictory proof – ie. be holding the letter the entire time and they
know the answer is there).
• R v Burgar- if the right to cross is restricted appeal will be automatically appealed and likely result a new trial.
IMPEACHING YOUR OPPONENT’S WITNESS
10 Methods:
[1] Cross-examination with respect to testimonial factors:
o Ability to perceive the event - 'did you have your glasses on?'; What are the observational skills of this witness at
the time of the event, powers of observation?; Ability to recall - do they need to have their memory refreshed?;
What is the witnesses experiential capacity (what is their life experience i.e. child, adult, senior)?; What is the
integrity/honesty of the witness?
[2] Proving a prior inconsistent statement on a non-collateral matter (one directly relevant to the case)
o Prior statements under S.10 (written or recorded), 11 (oral) of the CEA, or prelim/discovery testimony
o If not a KGB statement, it can only go to credibility; If KGB, it can be tendered for its truth.
o Must put the statement to the accused  if they adopt it you can ask why the difference, if they deny it you can
prove the prior inconsistent statement.
[3] Prior Inconsistent Statement on a collateral issue (one not relevant to the issues of the case):
o Collateral Fact Rule: You can cross-examine a witness on collateral matter (not directly on point) but you are
stuck with the answers they give, and cannot call further evidence to support the contradictions made.
1. Unless meeting either the Phipson test (4 exceptions) or the Hitchcock/Wigmore test
2. Phipson definition: collateral fact is any fact which is irrelevant to any substantive issue.
 4 exceptions (when you can call evidence to rebut credibility issues)
- witness is bias or corrupt
- previous convictions
- evidence of reputation of untruthfulness
- expert testimony as to reliability of witness’s evidence
3. Wigmore definition
 If the only basis for presenting the evidence is that it contradicts the opponent’s witness, it will
be inadmissible.
 TEST: (1) if you could call the evidence in your own case, i.e., if it is connected to the issues in
the case, then you can contradict the witness on it. (2) if it is so far connected, that a
contradiction would arise as to the witness’ testimonial factors, then such evidence can be
called.
E.g. facts relevant to material issues AND/OR the witness’s credibility.
1. e.g. W: "I have 20/20 vision" - if you have evidence that their vision is bad, traditionally this is collateral.
But modern Wigmore view is that you are going to be able to cross them on this
R v Krouse – seems to show that the SCC favours the more narrow Phipson test.
[4] The calling of evidence to demonstrate that the witness called by your opponent is biased or corrupt
o E.g. the witness has made a statement that “they are going to burn this accused on the stand, and lie”. Or, the
witness has accepted money/deal to say something specific.
o
You must first put this to the witness. If they deny it, you can call independent proof (the recipient of the
statement) to prove the lie.
[5] By demonstrating that the witness has a prior criminal record (s.12 of the CEA and its provincial counterpart)
o Can only cross examine the accused witness on the following info: Date of the offence, What the offence was,
Where the offence took place, Penalty. Not allowed to ask about the manner, circumstances of the offence,
unless the witness himself puts his character into issue.
o If successful Corbett application is granted the accused is immune from questions about his record
o All other witnesses other than the AC can be cross examined on anything relating to their s. 12 past record.
[6] By demonstrating that the witness ought not be believed because of their criminal history/unsavoury past.
o If the character is based on a material issue to the case, then full range ability to contradict them. If character
not based on a material issue in the case, bound by the collateral fact rule.
o Raising the discreditable past cannot be done when the accused is the witness, unless he has injected character
as an issue into the case.
[7] Demonstrate that the Witness has a bad reputation for untruthfulness
- Call evidence from the local community to speak about reputation
- Ask: “Do you know accused’s rep for honesty in the community” & “what is the community” & “based on this
knowledge would you believe this man on his oath?”
[8] By calling evidence as to the witness’ physical or psychological condition which adversely affects the weight given to
their evidence. Ie. poor vision, hearing, MH etc.
[9] By attacking the absent hearsay declarant All methods are available to attack the witness who is in the courtroom,
can be used to attack the absent hearsay declarant.
[10] The evidence of children
o Challenge on the basis of: Lack of corroborating evidence (requirement under the AEA, s. 19, but not the CEA),
o There is no automatic discount of the reliability of a child’s evidence
RE-EXAMINATION AND REPLY/REBUTTAL EVIDENCE
Re-examination (before the close of your case)
o After counsel examines a witness, and that witness is examined by opposing counsel, counsel can re-examine
the witness on matters that arose during opposing counsel's cross examination and now need clarification or
further explanation.
2. Not new issues, not having the witness repeat their evidence-in-chief, not having the last say
o *Re-examination can only touch on a matter already brought up
Rebuttal evidence (after the close of your case)
o Crown/Plaintiff has led evidence, and their case is now closed. As a result of the defence evidence, the Crown/P
can respond to matters that arose in the defence case that the Crown/P could not have not anticipated/foresee
o Cannot take this opportunity to raise evidence that you should have called earlier but chose not to
1. Cannot just 'split the case' - can't hold back evidence then lead it in rebuttal
1. Judge enjoys broad power- only with leave of the court can you call rebuttal (judge must hear outline of
your rebuttal)
o If something comes up after the rebuttal, which takes the accused by the surprised, accused can rebut -Sur-rebuttal
REAL EVIDENCE
- Tangible items exhibited to a judge or jury.
Types
1. Directly linked to the occurrence (e.g. murder weapon, clothing, video, wire taps, audio, photos etc) Or
2. Demonstrative evidence (e.g. visual aids such as maps, charts, models used to explain)
Exhibits
• Must have a sufficient evidentiary basis to support identification/authentication, continuity and integrity as an exhibit
in order for it to be admitted.
• Identification and Authentication: If the first witness cannot authenticate it, then it should be marked as an “exhibit for
identification” until it can properly be authenticated by subsequent witnesses when it will then be marked as a “full
exhibit”
• Continuity Evidence must be called as to the chain of continuity (if not admitted/waived by opposing counsel – it
usually is admitted because they get all this evidence in the disclosure package)
1. Chain of continuity - every time an item is handled, the person who handles it must put his name on it
2. If there is no chain of continuity or a break in the chain then it may be restricted from becoming a full
exhibit.
3. Once marked a full exhibit the trier of fact can handle the evidence.
• 2 critical people:
1) exhibit officer: officer responsible for seizing exhibits properly and keeping a precise record of where seized.
2) photographer: takes photos as items are being seized.
Video/Photograph evidence
• Broad power to exclude inflammatory evidence; Rule is - only the pictures that are really necessary shall go in front of
the jury. Judge will use a voir dire to decide which pictures are required and which aren’t.
• Court itself can become witness and compare the video image with the appearance of the accused and conclude that
this is the same person:
R v Leany & Rowlonson
Facts: Mut and Jeff criminal duo caught on tape.
Held: The judge can come to his own conclusion based on their own observations of the accused, compared to the video
footage, rather than the testimony of someone else.
R v Nicholoposky 1996 SCC
Judge watched a robbery on video as the TOF. When she watched the video she said that she was ready to find BARD
that it was the man.
Documents
Best Evidence Rule -- should receive originals and not copies, absent a good reason for not having the original.
Taking of a view (rare)
Scenes of the accident explosion, etc are ok; TOF would be allowed on application of one of the parties to visit the scene
of the crime. We need to be careful that there is not contamination (e.g. that the TOF does not have some other
influence while on the site).
JUDICIAL NOTICE
In certain circumstances, the court may dispense with the calling of proof, by taking “judicial notice” of a particular
fact.
• This can arise at the instance of the judge or the urging of counsel.
Court is entitled to take judicial notice of
o Notorious Facts
"Everybody knows rule" - Facts so well known as to not be in dispute among reasonable persons.
E.g. On Dec.18th in Edmonton at 7pm it is dark.
**Can't take judicial notice of facts within your own general knowledge.
 E.g. judge knows of a car accident scene because he lives in the area
o Facts capable of immediate and accurate verification
"Anybody can find out rule" - Facts in sources that are readily accessible
E.g. quick reference to a dictionary or a history text; measures and weights, historical facts,
scientific facts, DSM definitions.
o Federal and Provincial statutes that are Gazetted
But not municipal by-laws (they must prove the bylaw was justly enacted at the time)
Court is obliged to take notice of these
o Legislative facts
Matters relating to parliament or legislative intention are often facts relating to social,
economic, cultural context E.g. Battered spouse cases in Lavalle: judge used judicial notice when
relying on academic writing none of which was available to the court that the battered wife
syndrome existed.
o Adjudicative Facts (the who, what, when, where, why)
Court can go beyond what is notorious or capable of immediate verification & beyond the scope
of the trial.
Ie. Spence: racial prejudice in a particular community. Once this finding of fact is made,
subsequent judges can take judicial notice of the same (precedential value)
* Important Points:
> Judges cannot take judicial notice about foreign law (must call an expert to prove)
> *Judges cannot take judicial notice of personal knowledge (cannot draw on your personal knowledge unless the
criteria are otherwise met)
> If the court takes judicial notice of a fact  that fact is established and cannot be challenged (it is determinative &
conclusive)
EVIDENCE OF CHILDREN Bill C-15 (1988) Amended CC to protect kid/make courtroom more comfortable - Allowing
support person when testifies; Allowing the child to testify out of the courtroom, behind screen; Not permitting
self-represented accused to cross kid Allowing child to adopt prior-videotaped statement, provided it was made within a
reasonable time after the incident- s. 715.1
Bill C-2 (add ons to C-15)
> provides that: extensive publication bans, further offences to protect kids, creating child porn offences, evidence need
not be sworn
CREDIBILITY OF YOUR OWN WITNESS
• A party which calls the witness is implying the witness is credible.
 But, Crown witness often “fail to come up to proof”- do not perform as expected by a party that has called them
a. Witness is nervous, frightened, or forgetful or
b. Witness is adverse or hostile.
• If a witness “fails to come up to proof”, then you may have to significantly impeach the credibility of that witness (your
own) before you turn them over to opposing counsel who will engage in a friendly cross-examination.
*2 objectives:
- To have the witness adopt the statement. If they adopt, then it is entered for proof of its content. If they
don’t, it can only be used to challenge their credibility (unless admitted under KGB/S.715)
- Otherwise, destroy their credibility so that anything the defence gets from the witness will not be credible.
THE RULES WITH RESPECT TO EXAMINATION-IN-CHIEF
• S.25 AEA and s. 9 CEA provide 3 primary rules for examination in chief:
 A party cannot impeach his own witness' credibility by showing general evidence of bad character.
 But the party can contradict his witness by calling other evidence
4. e.g. call another witness to contradict the first witness and ask TOF to prefer second witness’s testimony
 If the judge accepts the witness as adverse, by leave of the judge, the party lead evidence of a prior inconsistent
statement.
5. Before raising the prior inconsistent statement, must first: (Brown v Dunn)
 Mention to witness the circumstances of the prior statement
.2. Ask whether they made that prior statement
> if they deny the statement – it can be proved
> if they adopt it – it will be admissible for its truth
Common Law Rules
1) There is a prohibition on asking leading questions in examination-in-chief.
2) If a party's witness is deemed hostile and the judge is satisfied it would be appropriate to allow cross
examination, with leave of the court, that party can cross-examine them "at large" e.g. ask leading questions
ATTACKING THE CREDIBILITY OF YOUR OWN WITNESS
Four main ways to attack the credibility of your own witness (obviously examination in chief)
1. Hostile Witness -- allowed to Cross examine
o Hostile = where witness does not give evidence fairly and with a desire to tell the truth because of
hostility towards the party calling him.
o Where the judge is satisfied that the witness is hostile, he may grant leave for counsel to cross examine
witness "at large", with all of the tools available in cross-examination
o A hostile witness is dealt with CROSS EXAMINATION, NOT Examination in chief which is left to s.9(1)
o ss. 10, 11 of the CEA
2. Adverse or Unfavourable witness (e.g. 9(1)):
o Cassibo: Adverse means unfavourable in that his testimony assumes a position opposite to the party
calling him
o The witness is not outwardly unfavourable BUT, has made a prior inconsistent statement with present
testimony.
.1. S.25(2) & (3) AEA and s. 9(1) CEA permit proof of this prior inconsistent statement (see above)
.2. The prior statement may be the only evidence of adversity and counsel can relying exclusively
on it to prove adversity. (adversity determined in a voir dire).
.3. Can be an oral statement
3. Section 9(2) CEA application:
 Cross is permitted on a statement made in writing, or reduced to writing, or recorded on audio or video
tape where the statement is inconsistent with the present testimony. *Cross occurs only on the
statement.
o Does not require a finding of adversity
o This is separate from s.9(1)
o 9(2) has no application to prior verbal statements (only statements with proof)
4.
KGB Statement/Witness
The strongest impeachment method --> TOF can choose between the witness’ current
testimony or the prior statement in deciding which represents the true version (Likely to choose
the prior statement)
o
This doesn’t just go to credibility; it goes in for proof of its contents/truth.
s. 9(1) and 9(2) CEA (these only deal with Examination in Chief of one’s own witness)
- Counsel cannot just confront the W who fails to come to proof with the earlier inconsistent statement. There
are procedures under 9(1) and 9(2) of the CEA that govern the admissibility of the statements.
9. (1)
1) A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, BUT
2) If the witness, in the opinion of the court, proves adverse, the party may contradict him by other evidence, AND,
3) 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.
o Counsel must first proof the witness is adverse. Then Counsel may to put to the witness the prior
statement: "Is it not the case that you made this previous statement?"
If the W denies making the statement it permits counsel to lead independent proof to establish
that W did make the statement
If the W admits making the statement counsel cannot cross, but can examine regarding the
giving of the statement, an explanation for making it and testifying differently today
- Procedure: similar to Milgaard – in a voire dire, counsel must prove that the W is adverse.
HANES v Wawanesa Insurance
Facts: Sued him because he said he had been drinking when in accident. 3 friends were in the car and were investigated
by the insurance company. The insurance company assumed they would give good evidence against Haynes. However,
when they went into the box, they gave evidence that made Haynes seem sober.
Ratio: Adverse is not the same thing as hostile. It means a witness unfavourable to their case.
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.
- No requirement at all that the witness be declared adverse!
- It only applies to statements which are readily capable of proof (reduced to writing, audio recorded etc. ,
something we can readily demonstrate, so NOT things like oral statements)
- There must be a substantial inconsistency between prior statement and its now statement
If cross examination is allowed following the voir dire,
- It must take place in front of the jury
- If crossing is allowed, it is limited to the portions of the statement itself, not cross examination at large. If you
have a hostile witness, you can cross on anything, but if you cross on 9(2) you're limited to the statement
Milgaard Procedure for having resort to 9(2)
• If your own witness is not hostile, but gives a statement inconsistent with a previous statement that has been made, in
writing, recorded in video or on audio tape (not full KGB statement), without needing to prove adversity, counsel may be
allowed to cross-examine the witness as to the statement and the court can weigh the cross examination to determine if
the witness is adverse (which would allow you resort to s.9(1) – though to prove the inconsistency in case of the W
denying the statement, Cassibo says you need not go to 9(1), you can do it under 9(2).
.1.1. The announcement of the 9(2) application
.1.2. The jury are directed to retire to commence the voir dire
.1.3. Counsel shows the judge the recorded statement and points to the inconsistency with the witness’s now
testimony (Must be a substantial inconsistency on a material issue)
.1.4. If no inconsistency, the matter ends. If the judge agrees that there is an inconsistency, the applicant
must now prove that the statement is that of the witness.
.1.5. Put the statement to the W; The witness is asked if he made the statement.
o If yes, that is tantamount to proving the statement
o If no, evidence can be called to prove the statement
.1.6. Counsel for the opposing party is then allowed to cross-examine them on the circumstances of when
the statement was given (attempt to show that the prior statements were given in circumstances
making it improper for the judge to admit it, e.g., not voluntary)
.1.7. The judge decides whether the statement was made, and whether to allow cross examination of the
witness on the statement in front of the jury.
9(1) vs. 9(2) are different applications
9(1) – Method of Impeachment, other than Cross Examination
Drafting errors
9(2)
(‘the’/’such’) (‘or’/’and’)
Prior statement is oral or written
Must FIND Adversity
o not favourable?
o Court can look to 9(2) examination to decide whether
adverse (Cassibo)
o The only evidence of adversity could come from the
statement itself
Prior statement is in writing, tape recorded (not
oral)
NO need to find adversity
o All that is needed is that there is a
substantial inconsistency between the prior
statement and present testimony
Procedure – Milgaard
Cross-examination is allowed, but only on the
statement
Procedure – Milgaard
If Adversity is found, statement can be put to witness (If W denies
making statement, independent evidence can be called to prove it
>> the statement will go to credibility – not truth) – unless it is a
KGB – then it can go in for proof
Does not provide for proof of inconsistent
statements – but, Cassibo said that such proof can
be main if a party is given leave to C-E and the
witness denies the statement
Use of Previous Inconsistent Statement
o If a prior inconsistent statement has the indicia of reliability as per KGB, it can be admitted for its truth
o If it is NOT reliable as per kGB,
1. If the witness accepts the statement as true, it becomes the witness’s evidence
2. If he does not adopted, the non-KGB statement cannot go in for its truth, but can be used to weaken
credibility (need to go though 9(1) application)
Corroboration of Evidence
PRACTICALLY SPEAKING – always look for corroborative proof: Independent evidence (direct or circumstantial) that
tends to confirm the evidence of the complainant.
• Although it is practically a good thing it is only necessary in a select few types of offences where statute dictates it: IE.
forgery, perjury and certain prostitution offences.
• Historically: corroboration was required for sex offences and offences where the evidence was the complaint of a lone
unsworn child.
> those ideas are now gone and a conviction can be grounded on the evidence of a lone complainant. However,
corroboration does help tighten up a case and make the complainant more credible.
Certain types of cases one looks for corroborative evidence is strongly sought:
1) Accomplices corroborative evidence is sought because an accomplice has motivation to falsely accuse others, protect
his friends and reduce his role in the offence & he is morally guilty already (bad credibility).
- co-accused cannot mutually corroborate each other’s version of events
- Baskerville: it is dangerous to convict on uncorroborated evidence of an accomplice
2) Evidence of Children: corroboration is no longer required in criminal proceedings as per s. 659 but is required in a civil
case. The odd result is that an accused could be convicted in CC but not be liable in the same civil case due to the
unequal rules.
3) Sexual complainant – s. 274 CC says that corroboration is not required, but it is still useful given the he said/she said
nature of the offence and rule for a credibility contest as outlined in R v WD.
4) Disreputable witness- witnesses who are unsavory  we look for corroboration
5) Person previously convicted of perjury  we look for corroborative evidence
6) Mentally weak witness  (psych problem – competent but not strong)
R v Vetrovic (Vetrovic Warning)
Facts: Accomplices testified in drug conspiracy cases.
Held: SCC proposes the Vetrovec Warning which gives judges the discretion to warn the jury of the risks of accepting the
testimony of untrustworthy witnesses without corroboration (can warn the jury to look for corroboration).
• An application for, and the issuance of, the warning occurs either mid trial or at jury charge. A Failure to do it, or
repeat it again, in the jury charge will be a reversible error.
• “ A clear and sharp warning that the jury should be looking for corroborating proof of the testimony of witness X.”
Scope of Corroboration:
• If the corroborating evidence strengthens the witness’s credibility it will relate to their credibility in all aspects of the
offence and relate to credibility in complaints against co-accused not mentioned (ie. if something they claimed is
corroborated it is more likely that the entire statement is true)
R v Chayko
Facts: Father seen walking out of room doing up his pants and daughter doing up her cloths. Her hair was a mess.
> It is corroborative because the independent evidence can be said to enhance the credibility of the complainant as it
relates to a relevant aspect of the offence.
R v GB
Facts: Accused was a young offender charged with sex assault of little boy. There was evidence that little boy had been
assaulted but no corroboration for ID of perp. The only evidence for ID was the uncorroborated evidence of the victim.
Held: SCC abandons the strict approach to corroboration  you look for any independent evidence that corroborates a
material aspect of the story. By confirming a material particular of the story the entire allegation is given credibility.
Ratio: Corroborative proof need not implicate the accused.. it needs only to corroborate a material particular of the W’s
story in order to bolster their credibility that the entire story is more likely true.
R v Kelhler
Facts: Accused charged with multiple robberies. Crown called an accomplice. He could establish ID in each of the
robberies. No other evidence implicated the accused. Crown witness was disreputable. Trial judge charged himself for
the need to corroborate evidence from the Crowns witness.
Held: Independent corroborative evidence of one of the robberies will apply to the evidence given about all the
robberies at large.
> corroborative evidence need not directly implicate the accused in every offence, it need only be capable of restoring
the TofF’s faith in the reliability of the W’s evidence.
R v Kehela
Facts: Accused convicted of 1st degree murder. Trial judge gave Vetrovic warning about the 2 disreputable witnesses.
Held:
• the giving of a Vetrovic warning is discretionary and likely will not be overturned on appeal.
4 Principles of Vetrovic Warning:
1) The judge should draw the jury’s attention to the testimony requiring special scrutiny – is there something about the
testimony that requires special scrutiny?
2) The judge ought to explain why the evidence is subject to special scrutiny (why the warning is being given)
- ie. explain why need to look for corroboration in fleeting glance ID
3) The judge is required to caution the jury that it is dangerous to convict on uncorroborated evidence of unsavory
witness… but can, if they believe the W to be true
4) The jury should look to other evidence to find that the unsavory witness is telling the truth (some material fact that
can be confirmed)
Test: Corroborative evidence exits when the evidence can reasonably be said to enhance a material particular of the
story which implicates the accused.