LAW 309 - Evidence Outline – Berger – Fall 2010

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Fall
Evidence
Christopher Scott
Outline for LAW 309 A01, as taught by Professor Ben Berger
University of Victoria Faculty of Law
2010
Evidence
Table of Contents
THE MECHANICS OF PROOF
1
Trial Structure
1
Witnesses: Competence and Compellability
Spousal Incompetency
Mental Capacity of Adult and Child Witnesses
Refusal of the Accused to Testify
2
2
2
3
Proof without Evidence
Formal Admissions of Fact
Judicial Notice
3
3
3
GENERAL REQUIREMENTS FOR ADMISSIBILITY – RELEVANCE
4
INTRINSIC EXCLUSIONARY RULES
5
Character Evidence
Character of the Accused
Character of Non-Accused Persons
5
5
6
Credibility
Of Your Witness
Of the Opposing Party’s Witness
Other Credibility Issues
7
7
7
8
Hearsay
Identifying Hearsay
Principled Approach
Exceptions to the Hearsay Rule
10
10
10
11
Opinion Evidence
Lay Opinion Evidence
Expert Opinion Evidence
13
13
13
EXTRINSIC (POLICY-BASED) EXCLUSIONS
14
Privileges
Class Privileges
Case-by-Case Privilege
14
14
15
3rd-Party Records – Privacy Concerns in Evidence Law
16
Public Interest and Crown Immunities
16
Statements of the Accused
Self-Incrimination
The Common Law Confessions Rule
Pre-Trial Silence
17
17
18
18
Exclusion of Evidence Under Charter s. 24(2)
Today
Historically
18
18
18
ORAL HISTORY – ABORIGINAL CULTURES AND THE COMMON LAW
19
INDEX OF CASES
20
i
Evidence
The Mechanics of Proof
Trial Structure

Civil Cases:
o Normal Persuasive Burden: Plaintiff must prove the case on the BoP (i.e. 50% + 1)
o Modified Persuasive Burden: In cases with criminal overtones, courts may require "clear,
cogent, and compelling evidence", or evidence of weight "commensurate with the occasion"
 The courts deny the existence of this third standard. It lies between BoP and BRD.
 Such cases include fraud, defamation and professional misconduct (“crimmy” charges)
o Special Situations:
 Summary Judgment: Takes place before the trial, based on the pleadings (BC Rules R. 9-6)
 Buden is on the party alleging that there is no genuine issue to be tried to show that the
evidentiary burden has not been met by the other party. This is an evidentiary burden.
 NB: This can be applied to ∆'s defences (by π) or to π's initial action (by ∆)
 Non-Suit Application: At the close of π's case, ∆ may argue that there is no evidence
sufficient for a finding of liability (i.e. no evidence on essential point) (BC Rules R. 12-5(4))
 If the application fails, ∆ may continue with their case and adduce evidence normally.
 Insufficient Evidence Application: Similar to non-suit, ∆ may apply to have the action
dismissed on the ground that π did not satisfy the persuasive burden.
(BC Rules R. 12-5(6))
 This is identical to ∆ simply choosing not to adduce evidence
 If the motion fails then ∆ loses the case (no opportunity to adduce evidence afterwards).
 Criminal Cases:
o Normal Persuasive Burden: The Crown has the burden to prove ∆’s guilt BRD
 A trial is unfair if the concept of BRD is not appropriately explained to the jury.
(Lifchus)
 There are several requirements on the jury charge (e.g. not the ordinary meaning; no other
adjectives; between probable and absolute proof; based on reason, not sympathy; etc) (Lifchus)
 Pre-Lifchus cases (pre-1997) are held to a lower standard of review.
o When ∆ takes the stand: Additional components in the jury charge (“W.(D.) charge”):
 If you believe the testimony of ∆, acquit.
 If you don’t believe ∆’s testimony, but it leaves you with a reasonable doubt, acquit.
 Even if you are not left in doubt by the evidence of ∆, you must ask yourself whether the
evidence that you do accept convinces you beyond a reasonable doubt of ∆'s guilt.
o Special Situations and Evidentiary Burdens:
Directed Verdict of Acquittal: Motion by ∆ saying R. has not adduced any evidence on an
Like a civil non- 
suit application.
essential point of the charge, such that no properly-instructed reasonable jury could convict.
 Asserting a Defence: To put a defence at issue, ∆ must raise an "air of reality"
(Osolin)
 ∆: evidentiary burden to raise the defence. R: persuasive burden to disprove it.
 Defences with reverse onus: ∆ holds both the evidentiary burden and the persuasive burden
to prove the defence on the BoP. There are four such defences: Automatism, Mental
disorder, Daviault (i.e. automatistic) Intoxication, Officially-Induced Error
 NB: Where the Crown raises mental disorder, the Crown must then prove it on the BoP.
 Constitutional Cases: The party alleging the breach must prove it, after which the Crown must
justify it under s. 1. Both parties are held to the standard of BoP.
 Warrantless searches have reverse onus; the Crown must prove that there was no breach.
 The BoP must be "applied rigorously" against the Crown (like the modified civil standard)
 Debate: Prof. Berger considers the burden to be misallocated in two circumstances:
Recall: ∆ has onus
 Exclusion of evidence under s. 24(2): burden on ∆ to show necessity of exclusion
to show breach too
 Section 7 cases: ∆ must show inconsistency with PFJs (should this be on R?)
1
Evidence
Witnesses: Competence and Compellability


Requirements of witnesses: Competence to give testimony and an oath or affirmation.
o Witnesses are permitted to give a solemn affirmation in place of an oath (CEA s. 14, BCEA s. 20)
Recall: Competence means that the witness may testify, compellability means that they must.
Spousal Incompetency
 Rationales for spousal incompetency:
o Protection of matrimonial harmony
o The "natural repugnance” of compelling one spouse to aid in the other’s condemnation.(Salituro)
 "the indignity of conscripting [∆]'s spouse to participate in [∆]'s own prosecution" (Couture)
o Historically: Unities of Personhood and Interest (spouses are 1 person with the same interests)
 Spouses are generally competent to testify for the defence
(CEA s. 4(1))
 Spouses are generally incompetent to testify for the Crown, except where:
o ∆ is charged with a sexual crime enumerated in CEA s. 4(2).
(CEA s. 4(2))
o ∆ is charged with a crime against children (under 14) enumerated in CEA s. 4(4). (CEA s. 4(4))
o A common law exception applies (this also makes the spouse compellable), such as: (CEA s. 4(5))
 Where the spouses are irreconcilably separated
(Salituro)
 Where ∆ has threatened the person, liberty or health of the spouse or their children (Schell)
 The rule is testimonial in nature; it protects the spouse from testifying. Accordingly, out-of-court
statements made by the spouse to police are also inadmissible.
(Couture)
 Common Law Spouses: The rule has historically been limited to married spouses, but the law may
be in flux after Miron and Trudeau; e.g. Masterson (OCA 2009) applied it to common law spouses.
 Critique: Why exclude spousal testimony when we admit the testimony of children/parents? (Salituro)
o The true reason for the privilege is the now-defunct doctrine of unity of personhood; this may
actually mean the rule is unconstitutional under s. 15 concerns, but the court didn’t go that far.
 See also: Spousal Privilege.
(p. 15)
Mental Capacity of Adult and Child Witnesses
 Adult Witnesses: Competence is presumed; the party alleging incompetence has the evidentiary
burden to demonstrate that an issue exists. If they can, follow a s. 16(1) inquiry:
(CEA s. 16(5))
o If the proposed witness cannot communicate, they cannot testify.
(CEA s. 16(4))
 Ability to communicate means: ability to perceive (incl. interpret), recollect, and [verbally]
communicate events. This is a “low threshold”; checking competence, not weight. (Marquard)
o If the proposed witness doesn’t understand the nature of an oath or solemn affirmation, they
may give evidence on a promise to tell the truth ("unsworn evidence")
(CEA s. 16(3))
 Unsworn evidence doesn’t have reduced weight, but the witness is not liable for perjury.
o If the above two conditions are not met, witness can testify under oath/affirmation. (CEA s. 16(2))
 Child Witnesses (under 14): Children are presumed competent to testify
(CEA s. 16.1(1))
o The party challenging capacity has the evidentiary burden to show there’s an issue with the
child’s ability to understand and respond to questions.
(CEA s. 16.1(4))
o If they can show there’s an issue, the court must conduct an inquiry:
(CEA s. 16.1(5))
 The only question: Can the child understand and respond to questions?
(CEA s. 16.1(3))
o If the child has capacity, they may then testify on a promise to tell the truth
(CEA s. 16.1(6))
 Children can never testify on an oath or affirmation
(CEA s. 16.1(2))
 Testimony given under a promise has the same effect as if given under oath (CEA s. 16.1(8))
o NB: In BC, the BCEA preserves the old scheme; children are subject to the same rules as adults,
except that capacity is not presumed (and the inquiry thus occurs automatically)
(BCEA s. 5)
2
Evidence
Refusal of the Accused to Testify
 ∆ may refuse to testify (i.e. ∆ isn’t compellable), and that refusal cannot be used as evidence. (Noble)
o Policy: This is based on the right to silence and the right to the presumption of innocence. (Noble)
o Exception: Failure to testify does work against an alibi defence.
(Noble)
o It is an error of law to use the failure of ∆ to testify as evidence against ∆
(Noble)
 The Crown and judge cannot comment on ∆’s failure to testify at all.
(CEA s. 4(6))
o Prof: This may prevent the judge from warning the jury about using ∆’s silence incorrectly.
Proof without Evidence
Formal Admissions of Fact
o Civil: Parties can agree to a statement of facts, which is then accepted by the court. A
concession made by a party to proceedings is considered conclusive proof of that fact.
 Efficiency: You basically can’t retract a concession. It’s inefficient.
(Tunner v. Novak)
o Criminal:
 ∆ may admit any fact alleged against him (and it’s then established without proof) (CC s. 655)
 The judge may require proof if it appears that the facts are disputed, unclear or false.
 Guilty Plea is a Limited Admission: A guilty plea is an admission of any essential
elements of the offence charged, any key facts in the indictment, and nothing more. (Adgey)
 Withdrawing a guilty plea: Prior to sentencing, a plea may be withdrawn if there are
“valid” (i.e. exceptional) circumstances.
(Adgey)
 Common law: To accept a guilty plea, a judge must inquire to satisfy himself that:
(Adgey)
 The plea was made voluntarily
 The plea was made with knowledge of the consequences of that plea.
 The facts admitted to are sufficient to establish the offence.
 Statute: To accept a guilty plea, a judge must be satisfied that ∆:
(CC s. 606(1.1))
 Is making the plea voluntarily
 Understands: (1) The plea is an admission to the offence’s essential elements, (2) The
nature/consequences of the plea, (3) Court is not bound by any agreement ∆ has with R.
Judicial Notice
o Theories of Judicial Notice: Morgan’s is generally accepted by the courts (but note Zundel)
 Morgan: Notice exists because asking for proof on certain facts would bring the
administration of justice into disrepute. Thus, Notice is mandatory (and not rebuttable)
 Thayer: Notice is an efficiency technique (and thus discretionary and rebuttable)
o Test: Judicial notice applies if a fact satisfies one of the following (Morgan’s criteria):(Find, Potts)
 Notorious: When a fact is so generally known/accepted [in the community in which it is
being tried] that it can't be reasonably questioned.
 Accurate Source: When a fact can be readily determined or verified by resort to sources
whose accuracy cannot be reasonably questioned.
o Types of facts to which notice can be applied:
 Adjudicative: The specific facts essential to resolving the dispute between the parties.
 Where a fact is a central issue to the case, judicial notice is discretionary.
(Zundel 1)
 Example: ∆ publishes Holocaust-denying pamphlet, charged with spreading false news.
Court doesn’t take judicial notice of the Holocaust. Central issue; discretionary (Zundel 1)
 Example: Zundel retrial. Court takes notice of deaths, but not the state policy. (Zundel 2)
SCC: notice should have  Example: ∆ charged with inciting hatred against the Roma (but only calls them
been granted here.
"gypsies"). No judicial notice taken that “gypsy” = “Roma”. Discretionary. (Krymowski)
3
Evidence


Legislative: Broad and general facts about social, economic and cultural context that
establish the purpose and background of legislation or decisions about judicial policy.
 Example: Notice taken that pornography is harmful to women when determining the
ambit of freedom of expression.
(Butler)
Social [Framework]: Social science research that is used to construct a frame of reference
or background context for deciding factual issues crucial to the case’s resolution
(Spence)
 There is a preference for such facts to be adduced by experts (and not notice)
(Spence)
 Ask: Would reasonable people (who have informed themselves on the topic) accept the
fact as not being subject to reasonable dispute for the purpose it will be used for? (Spence)
General Requirements for Admissibility – Relevance


The test for admissibility of evidence: Must be relevant and not fall under an exclusionary rule(Watson)
o Relevance: The evidence must be logically relevant and material. No weighing of value yet.
 Logical Relevance: Tends to prove a fact as a matter of logic or human experience.
 Materiality: The fact must be in issue (i.e. a component of the offences/defences/pleadings)
o Exclusionary Rules: May fall under a specific rule (e.g. hearsay), or under the intrinsic rule.
 Intrinsic Rule: Is its probative value outweighed by its potential for prejudice? (PV/PP)
 PV: How useful is the evidence? How strong is that link of relevance that we found?
 PP: The possibility that the finder of fact will engage in prohibited reasoning, overvalue
the evidence, or otherwise distort the trial process.
 To exclude evidence offered by ∆, the PP must "substantially outweigh" the PV (Seaboyer)
Example: Issue in trial: Spontaneity of gunfight. Evidence: Vic always carried a gun.
(Watson)
o Logical Relevance: This tends to prove that Vic had a gun at the time of the gunfight (which
tends to prove that Vic used it, which tends to prove that the gunfight was spontaneous).
o Materiality: Whether the gunfight was spontaneous is an issue in trial (need for self-defence)
4
Evidence
Intrinsic Exclusionary Rules
Character Evidence

Definition: Evidence of a person's propensity ("disposition") to behave in a particular way.
Character of the Accused
 Such evidence suggests ∆ is the kind of person who is more likely to have committed the offence.
 Policy: Character evidence distorts the trial process and invites the “prohibited inference”: that we
might convict ∆ on the basis of past actions and not present guilt. (Say this for PP)
 The Crown may adduce character evidence against ∆ when:
o It is directly relevant (i.e. non-circumstantial) to an issue in the trial (e.g. defamation case)
o It is relevant to credibility with an incidental character effect (turns on PV/PP)
o It is offered for the sole purpose of suggesting that ∆ is a person of bad character
 This is inadmissible unless ∆ has put his good character in issue by an express or implicit
assertion that he is not the kind of person who would have done the crime alleged. (Rowton)
 ∆ can put his character in issue in the following ways:
 Witnesses can testify to the general reputation of ∆ in the community.
(Rowton)
 “Community” includes any community that knows ∆; not just residential. (Levasseur)
 Not merely the personal opinion of the witness or specific good acts.
(Rowton)
 ∆’s own testimony (∆ can say almost anything, may include prior good acts) (McNamara)
 Expert evidence that ∆ doesn’t have a trait that the perpetrator does have (or vice-versa)
that’s distinctive enough to be of “material assistance” in finding guilt\innocence. (Mohan)
 The Crown may rebut ∆'s evidence with any of the following:
 General reputation evidence
 Cross-examination (incl. questioning on prior bad acts)
 Expert character evidence
 Prior convictions (R. v. P.(N.A.): this includes the specifics of those offences) (CC s. 666)
 R can only admit enough character evidence to nullify π's good character evidence.(McNamara)
o It is offered as similar fact evidence, provided it meets the following test:
(Handy)
 Identify the specific, non-character issue that the evidence relates to. Such issues include:
 mens rea (e.g. showing malice or intention)
(Straffen)
 actus reus (e.g. showing it wasn't an accident)
(Straffen)
 identity (Arp: it must be so distinctive as to constitute a "signature")
(Straffen, Arp)
 Evaluate the PV with reference to the following factors:
(Handy)
 Nature of the similarity between details, distinctive features, and circumstances of past
act and those of the current offence (this one is the most important)
 Proximity in time between past act and current offence
 Number of occurrences of the similar acts
 Any intervening event (e.g. ∆ being injured, jailed or counseled in the interim)
 Any other factor supporting/rebutting the unity of past/present acts (e.g. collusion)
 Evaluate the PP in two parts:
 Moral prejudice: Will it cause the jury to think that ∆ is a bad person?
 Particularly important when the past events were acts were more reprehensible.
 Reasoning prejudice: Will it confuse or distract the jury, or slow their deliberations?
 Consider the inflammatory nature of the crime again here.
 Balance PP and PV; if PV > PP, admit. Otherwise, exclude.
 Advise jury that SFE can be used for the specific issue, but not as character evidence.
 PV needs to be “incredibly strong” (though not conclusive), akin to a fingerprint
5
Evidence





Example: ∆s adopt babies for a low fee, bury them in the back yard. 8 babies found in the yards of
previous houses they’ve lived in. Court admits as relevant to intent.
(Makin)
Example: ∆’s wealthy wife dies in the bathtub. So did his last 2 wealthy wives. Court admits as
relevant to actus reus – that is, as showing that it was unlikely that ∆ didn’t kill his wife.
(Smith)
Example: Girl found dead via manual strangulation, no struggle/rape, left in broad daylight. ∆
confessed to 2 identical murders. Admitted to show identity – the same person killed all 3. (Straffen)
Example: ∆ accused of 2 “strikingly similar” murders. ∆’s involvement in both is "unlikely to be
the product of coincidence", and as such the facts of each case can be used as similar fact evidence
in the other if the jury finds that the same person likely committed both offences.
(Arp)
Example: ∆ charged with sexual assault (consensual sex that turned non-consensual). ∆’s ex-wife’s
testimony of ∆’s entirely non-consensual sex with her is not admitted; similarity is weak,
circumstances were different (marriage vs. one-night stand), not distinctive, high PP.
(Handy)
Character of Non-Accused Persons
 Policy: No risk of wrongful conviction for non-∆ witnesses, and no presumption of innocence.
 Rule: Character evidence of a non-∆ witness is admissible whenever it’s relevant.
(McMillan)
o Example: ∆ charged with killing his baby, claims his wife did it (identity defence). Evidence
of her psychopathic personality admitted – she had access to the baby, so it’s relevant. (McMillan)
 NB: The usual rules for psychiatric evidence apply, though: must be within sphere of expert.
o Example: ∆ charged with killed 2 people, claims self-defence (affirmative defence, depends
on their bad conduct). Evidence of their past offences/violent nature admitted.
(Scopelliti)
 The Scopelliti Boomerang: If ∆ suggests that he is a better person than a witness with evidence of
their bad character, then ∆ has put his character in issue. R may adduce character evidence.(McMillan)
Sexual History (of Complainants)




In proceedings under listed sexual offence provisions, evidence of sexual reputation (general or
specific) is inadmissible for the purpose of addressing the credibility of the complainant (CC s. 277)
In any proceeding, sexual history evidence (of specific prior sexual acts) offered for its sexual
nature and given to support one of the twin myths is inadmissible:
(CC s. 276)
o Can’t be given to show that the complainant was more likely to have consented. (CC s. 276(1)(a))
o Can’t be given to show that the complainant is less worthy of belief.
(CC s. 276(1)(b))
o The issue with twin myth evidence is that it is irrelevant (since the myths are untrue) (Darrach)
Note: Basically, the CC prohibits sexual history evidence that goes to the actus reus (consent), but
it does not necessarily prohibit it for other relevant uses (e.g. mens rea – mistaken belief of consent)
∆ may adduce evidence of the complainant's sexual history if:
(CC s. 276(2))
o The evidence is as to specific instances of sexual activity
o The evidence is relevant
o The evidence has significant PV that is not substantially outweighed by the PP.
o Factors to consider in admitting evidence are enumerated in the CC.
(CC s. 276(3))
Civil Cases


Where character evidence is directly relevant (e.g. in defamation suits), it is admissible.
Otherwise, it is not admissible, with the exception of similar fact evidence, which is admitted if it
is "logically probative" so long as it is not "oppressive or unfair" to the other side (NB: lower bar)
6
Evidence
Credibility

General Rule: The credibility of each witness is a fact in issue, so evidence regarding it is relevant.
Of Your Witness
 Oath Helping: You can’t lead evidence/testimony solely to bolster your witness’ credibility (Kyselka)
 Exceptions:
o Rehabilitation: Re-direct examination to counter impeachment in cross-examination.
o Expert Evidence were the jury needs special information to properly assess credibility:(Marquard)
 About credibility: Evidence that draws a conclusion about the witness' ultimate credibility
(e.g. “I believe this witness”) is inadmissible.
(Marquard)
 Relevant to credibility: Evidence on human conduct and specific psychological & physical
factors that are helpful and necessary in the jury's assessment is admissible.
(Marquard)
 Example: Expert psychological testimony that the witness lacks the intellectual capacity to
fabricate the story was inadmissible because the jury didn’t need assistance to realize this
and this was evidence about credibility (directly concluding the witness is truthful) (Kyselka)
 Example: Expert attests to the usual conduct of abused children, also states that she found
the child witness' initial denial of the abuse "suspicious". The latter is inadmissible (Marquard)
o Prior Consistent Statements (only admissible under certain circumstances)
 Such statements may be adduced to countering an assertion of recent fabrication
(Stirling)
 Limited Use: They may be used only to rebut the assertion, not for truth/credibility(Stirling)
 The allegation is that the story was fabricated at some time after events at issue.
Consistent statements after the event, but before that time, are admissible.
(Stirling)
 Such statements may also be permitted to form part of the narrative
(Dinardo)
 Limited Use: They may only be used for narrative, and not for corroboration. (Dinardo)
 Example: H testifies ∆ was the driver. Post-accident, H sued ∆ civilly. This presents motive
to fabricate; evidence of consistent statements prior to the start of the suit is admitted (Stirling)
Example: ∆ is charged with theft of a van, ∆ argues that he was picked up by the thief and
Fabrication is 
circumstantially
then took over the driving because the driver was drunk. Fabrication would obviously come
alleged
to the mind of the jury, so ∆ may adduce evidence of prior consistent statements.
(Giraldi)
o Reputation: Evidence as to ∆'s general reputation for veracity is admissible
(Clarke)
 Only reputation is admissible; the witness’ opinion of ∆’s truthfulness is not.
 This is character evidence – be prepared for the “bad character beats”
(Prof. Berger)
o Historically: Doctrine of Recent Complaint: In sexual assault cases, a delay in reporting was
thought to go to credibility. Thus, prior consistent statements were always admissible.
 These rules have been abolished; there is no longer a presumption of relevance.
(CC s. 275)
 Delay alone does not suggest fabrication, but it may when combined with other factors. (D(D))
Of the Opposing Party’s Witness
 Cross-Examination is the primary engine of impeachment. It is highly regarded by the courts (Lyttle)
o No questions that are overly repetitive/aggressive/prejudicial/reckless, or lead to falsehoods
o Need a good faith basis to ask a question leading a theory without an evidentiary basis
(Lyttle)
o There is no duty to cross-examine, except where you intend to contradict the witness
elsewhere in your case (i.e. suggest they’re lying or mistaken)
(Browne v. Dunn; R. v. Dyck)
 Extrinsic evidence: Admissible, subject to an exclusionary rule (incl. the residual discretion) (Clarke)
o Collateral Facts Rule: You may not adduce extrinsic evidence on cross-examination to
contradict the witness' testimony on a collateral matter.
(Krause)
 “Collateral Matter”: Not sufficiently connected to the case to be admissible on its own.
7
Evidence


BCEA
ss. 13, 14



Evidence is not collateral if it (a) relates to a substantive issue or (b) relates to credibility
and is not a mere contradiction; only mere contradictions are collateral. (Hitchcock, Krause)
 E.g. (b) includes evidence re: bias, motive to lie, prejudice, or interest in the case.
o Example: In a [non-tax] fraud case, ∆ says he filed his income tax returns. Evidence that he had
not done so was not admissible – collateral facts (mere contradiction)
(Rafael)
Prior Inconsistent Statements: These are admissible, subject to statutory limitations:
o Before contradicting a witness with a recorded or oral statement, the witness' attention must be
directed to it and they must be given a chance to explain the contradiction.
(CEA ss. 10, 11)
o If the witness doesn't adopt it, then all that has been shown is that there was an inconsistency,
which goes to credibility. The adduced statement is not to be used for its truth.
o Prior inconsistent statements are hearsay. See Hearsay, p. 10, for policy and examples. (cf. KGB)
Expert Evidence: The major concern is usurpation; does presenting the expert usurp the jury's
role of assessing credibility and determining the truth?
o Medical evidence that goes to the reliability of the witness’ evidence (e.g. disease or defect of
the mind) that would otherwise be unavailable to the jury is admissible.
(Toohey)
Evidence of bad reputation for veracity: ∆ may ask their witness whether R’s witness has a good
or bad reputation for veracity in her residential community, but not whether he’d believe her. (Clarke)
Prior Convictions: A witness’ prior criminal act is admissible as relevant to credibility (CEA s. 12(1))
o If the witness denies the conviction, collateral facts doesn’t apply; it may be proved(CEA s. 12(1.1))
o You may "soften the blow" by bringing up prior convictions in the examination in chief (Bokyo)
 This is an exception to the prohibition against impeaching your own witness.
Prior Convictions of the Accused – Special Considerations:




CEA s. 12(1) applies to ∆, but the judge may still exclude under the residual discretion.
(Corbett)
o The judge may choose to admit all, part, or none of ∆’s past convictions. This is determined in a
pre-trial Corbett application hearing.
Factors to consider in assessing the residual discretion (PP/PV)
(Corbett)
o The nature of the past conviction
o The similarity of the past offence to the present charge
o The remoteness (or nearness) [in time] of the past conviction
o Unfairness to R in letting ∆ adduce R’s witnesses’ past convictions, but not vice-versa.
 Thus, if ∆ attacks R's witnesses on past convictions, ∆'s may become admissible.
Jury charge: The jury must be instructed to avoid the prohibited character inference.
(Corbett)
NB – If ∆’s character is in issue, ∆’s entire criminal record is automatically admissible.
(CC s. 666)
Other Credibility Issues
Corroboration and Unsavoury Witnesses




Particular Crimes: Corroboration on a “material particular” is required for a charge of [high]
treason (CC s. 47), perjury (CC s. 133), and procuring a feigned marriage.
Children: Corroboration is not required for children’s testimony
(CC s. 659)
Accomplices: Corroboration is not automatically required for accomplice testimony
(Vetrovec)
Unsavoury Witnesses: There are no classes of witness, but Crown witnesses may be “unsavoury”:
o The Vetrovec Rule:
(Vetrovec)
 If:
(1) A judge believes that a witness is "unsavoury", and
(2) That witness plays more than a minor role in the Crown's case
 Then: (1) The judge may offer a "sharp and clear warning", and
(2) The warning must draw the attention of the jury to the risks of accepting the
evidence of this witness “without more” (i.e. confirming or "comforting" evidence)
8
Evidence
o Purpose of a Vetrovec warning: to alert the jury to the danger of relying on the unsupported
evidence of the unsavoury witnesses, based on the court's expertise with such witnesses. (Khela)
o This applies to all witnesses who, because of their amoral character, criminal lifestyle, past
dishonesty, or interest in the trial, cannot be trusted to tell the truth, even under oath.
(Khela)
o A Vetrovec warning must:
(Khela)
 Draw the attention of the jury to the testimonial evidence requiring special scrutiny
 Explain why this evidence is subject to special scrutiny
 Caution the jury that it is dangerous to convict on unconfirmed evidence of this sort, though
the jury is entitled to do so if satisfied that the evidence is true
 Inform the jury that they, in determining the veracity of the suspect evidence, should look
for evidence from another source tending to show that the untrustworthy witness is telling
the truth as to the guilt of the accused.
These requirements  Evidence, to be confirmatory, must be:
represent a restriction
 Independent of the witness (must come from another, untainted source)
of Vetrovec
 Material (must speak to the guilt of ∆, not merely the witness' reliability generally)
Impeaching Your Witness


In general, counsel cannot cross-examine or impeach their own witness on direct examination.
Addressing problems you can have with a witness:
o Your witness forgets at trial ("Past recollection revived")
 The witness may use any means ("a song, a scent, a photograph...") to refresh their memory.
 The extent to which they must refresh their memory will go to the weight of their testimony.
o Your witness could not be expected to remember ("Past recollection recorded")
 The witness can consult the record, but only if the witness can show that:
 It accurately reflects the memory at the time
 It was recorded in a reliable way
 It was recorded when the memory was still fresh
o Your witness becomes uncooperative or changes his testimony
 If you have no past inconsistent recorded statement but want to contradict or cross-examine:
 Apply under to have the witness declared "adverse"
(CEA s. 9(1))
 In a voir dire, the judge will look at demeanour, attitude, credibility, the circumstances,
and the alleged inconsistencies.
(CEA s. 9(1))
 A witness is adverse if he is merely unfavourable to the calling party's position(Cassibo)
 If declared adverse, you may go on to cross-examine and impeach "at large" (CEA s. 9(1))
 “At large” = “on any part of their testimony”
o If you have a past inconsistent recorded statement:
 You may cross-examine/impeach on that statement only, without finding adversity(CEA s. 9(2))
 NB: This statement could then be used in a s. 9(1) application to show adversity.
9
Evidence
Hearsay
Identifying Hearsay
 Definition: “Hearsay is an out-of-court statement offered for the truth of its contents” (Subramaniam)
o NB: “Out of court” here means “made by a declarant not on the stand”.
 Hearsay Analysis: Prof. Berger insists that we ask three specific questions, in order:
o What is the statement?
o Is the declarant of the statement on the stand right now? (“Yes”  not hearsay)
o Is the statement offered for the truth of the information it contains or simply as evidence that an
event (the statement) occurred? (Truth  hearsay, event  not hearsay)
 Example: Man tells ∆ “I am a Communist”. ∆ adduces to show his state of mind (fear). Evidence
admitted. The fact it was made is relevant to ∆’s state of mind. Not given for its truth. (Subramaniam)
 Example: ∆ accused of killing V; ∆ stated prior to police publication that V was killed with a
hatchet. ∆'s witness testifies that ∆'s wife previously accused him of killing V with a hatchet, which
is how he knew. Admitted: Adduced for the fact it was made, not for its truth.
(Wildman)
 Example: ∆'s competence to testify is in question. P sends letters to ∆ that treat him as competent.
This is implied hearsay; P not on stand, statement is “∆ is competent”, offered for truth.
(Wright)
 Example: ∆ charged with killing V. A testifies that V made various statements calling for H, her
husband. ∆ says H killed V. ∆ says this is implied hearsay (“H didn’t kill me”). Admitted. (Wysochan)
o Admitting a statement to show the mental state of the declarant is not hearsay (the fact it was
made shows the mental state; its truth doesn’t matter for that purpose)
(Wysochan)
Principled Approach
 Hearsay that is otherwise inadmissible will be admitted if it is:
(Kelawon)
o Necessary: Direct evidence from the declarant is not reasonably available
(Kelawon)
o Reliable: Despite lacking the tools of cross-examination and observation under oath, we are
nevertheless satisfied of the reliability of the evidence. Either of the following suffices: (Kelawon)
 Circumstantial Guarantees: The circumstances in which the statement was made negate
the possibility that the declarant was untruthful
(Khan, Kelawon)
 Functional Substitute for Cross-Examination: No real concern arises from the fact that
the evidence is presented in hearsay form because its truth and accuracy can be sufficiently
tested by means other than cross-examination.
(Kelawon)
 Remember that hearsay is presumptively inadmissible; the judge is looking for an “indicia of
trustworthiness” to rebut that presumption, so resolve ties against admissibility.
(Blackman)
 Policy: The court wants to avoid the hearsay dangers:
(KGB)
o Not the best evidence; it’s always better to go to the source
(KGB)
o We aren’t sure whether it is safe to rely on this evidence: no oath, no opportunity to observe, no
cross-examination (this last one is the most significant)
(KGB)
 Example: Doctor sexually assaults little girl (T), who tells her mother (M) later. T incompetent to
give testimony at trial. M's evidence of T's statement is hearsay, but it is necessary (T incompetent)
and reliable: T’s statements were “without guile”; she had no knowledge of sexual acts, no motive
to lie, and there was physical evidence corroborating her statements
(Khan)
 Example: ∆ charged with killing V. V made phone calls to her mother (M), in one of which V says
that ∆ has come to pick her up. ∆'s defence is alibi. No categorical hearsay exceptions apply. (Smith)
o Principled approach: Necessity hold (V is dead), but reliability doesn’t. V had reason to lie (to
avoid M calling abusive ex-boyfriend to pick her up), and hadn’t actually seen ∆ when she said
he’d come to pick her up (the car was outside) Resolve in favour of inadmissibility.
(Smith)
10
Evidence


Example: ∆ charged with murder, his friends saw. They admit this on video during police
interview, but won’t adopt those statements at trial.
(KGB)
o Prior inconsistent statements are inadmissible because they are hearsay. Although the
declarant is technically on the stand, they can’t be cross-examined; it’s a curious anomaly. (KGB)
o Principled approach: Necessity is made out (no other way to get statement into court)
(KGB)
 Reliability is also made out, under the functional substitute branch:
 Oath substitute: Taped statements made under oath with warning of consequences
 Observation substitute: Entire statement is taped, no pre-taping “malign influences”
 Cross-examination substitute: The witness is denying the statement; that’s the most that
cross-examination could hope to achieve, so this need is not pressing here.
Example: ∆ abuses V, a senior in her care. V gives statement to police on videotape. V dies.
Videotape excluded: Although necessary, not reliable (no functional substitute [just a video]), not
intrinsically trustworthy (V had dementia, there was no oath, V had motive to lie, etc.)
(Kelawon)
Exceptions to the Hearsay Rule
 Evidence that falls under a categorical exception is presumptively admissible, but is still subject to
exclusion under the principled approach (though this is “rare”).
(Starr, Mapara)
 Prior Judicial Proceeding (Common Law): Admissible if these requirements are met:
(Potvin)
o The evidence is otherwise unavailable,
o The issues and parties in both proceedings are substantially the same, and
o The party against whom the evidence is being tendered (or a party with common interest) had
adequate opportunity to cross-examine the witness.
 Prior Judicial Proceeding (Statutory, Criminal):
(CC s. 715)
o Hearsay evidence from a prior judicial proceeding is admissible if:
(CC s. 715)
 The witness is unavailable for a listed reason (dead, insane, ill, or absent from Canada)
 The evidence was taken in the presence of ∆, and
 ∆ had full opportunity to cross-examine the witness.
o This provision is constitutional; doesn't violate Charter ss. 7, 11(d).
(Potvin)
o This is about the opportunity to cross-examine; if ∆ chooses not to cross-examine during a
preliminary hearing as part of a defence strategy, too bad.
(Potvin)
 If this would be unfair (extrinsically or intrinsically), the judge has discretion to exclude
 e.g. If R suspects that a witness may not make it to trial, they must tell ∆ (extrinsic)
 Prior Judicial Proceeding (Statutory, Civil): Relaxed requirements:
(BC Civil Rules R. 12-5(54))
o The witness is unavailable
o The testimony was given under oath at a proceeding, hearing or inquiry, and
o The other party has been given reasonable notice.
o NB: The judge still has discretion under the Rules, so the principled approach prevails.
 Business Records: Must be (1) Made reasonably contemporaneously (2) in the ordinary course of
duty (3) by persons having knowledge of the matters (4) who are under a duty to make the record or
report, and (5) there is no motive to misrepresent the matter.
(CEA s. 30)
 Financial Institution Records: A copy of any record kept in any financial institution is always
admissible as proof of the entry's (a) contents and (b) existence. No witness necessary.
(CEA s. 29)
 Party Admissions: Statements made by a party to the proceeding are not excluded.
(Evans (SCC))
 Excited Utterances: A statement is admissible if it was:
(Clark)
 Related to a startling event or condition.
 Made while the declarant is under the stress of excitement caused by that event/condition.
11
Evidence




o Example: ∆ stabs V, claims self-defence. V yelled for help, claiming to have been murdered.
Statement admitted through 3rd party. No memory concerns (event and statement are
contemporaneous), and fabrication is unlikely (due to stress/excitement)
(Clark)
o Debate: The principled approach may allow us to reject evidence despite this exception:
 Reliability: This doesn’t account for mistake. Although the declarant is unlikely to lie, they
are no more likely to be correct. Circumstances may militate against reliability.
Statements of Physical Condition: When a person claims to be experiencing a particular physical
condition, the statement containing that claim is admissible.
o The statement may only be used to prove that the person was experiencing the condition at the
time, or to establish the duration of the condition.
Statements of Present Mental State: When a person explicitly describes his present state of mind
(emotions/intents/motive/plans), his statement to that effect is admissible for its truth where:
(P(R))
 The state of mind is relevant
 The statement is not made under circumstances of suspicion (reliability)
o NB: If the statement were implicit, the truth of its contents is not being examined; it’s
admissible as circumstantial evidence, and isn’t hearsay (NB – value is attenuated)
(P(R))
o Example: V was moving away from ∆ (crazy ex). Made statements regarding her intention to
leave permanently. Statements admitted to show V's intention to leave ∆ permanently.
(P(R))
Statements Against Interest: Can be either penal or pecuniary (originally only pecuniary) (O’Brien)
o A statement against pecuniary interest is admissible if:
 The declarant is not available
 The statement is made against the declarant's interest
 The declarant has personal knowledge of the facts stated (reliability)
o A statement against penal interests is admissible if:
(Demeter, aff’d Pelletier)
 The declarant apprehended a vulnerability to penal consequences.
 The vulnerability to those consequences was immediate – not remote.
 The situation must be considered in its totality; must be contrary to penal interest overall.
 If unclear, examine other circumstances linking the declarant with ∆ or the crime
 The declarant must be unavailable.
o Statements against penal interest may only be used to exculpate ∆, and not to inculpate. (Lucier)
o Example: ∆ charged with killing V. C admits to shoving V in self-defence (unavailable at trial).
Admitted. C’s suggestion of a defence didn’t eliminate the penal element in its totality. (Pelletier)
Dying Declarations: A dying declaration is admissible where:
 The deceased had a settled, hopeless expectation of almost immediate death
 The statement was about the circumstances of the death
 The statement would have been admissible if the deceased were on the stand
 The offence involved is the homicide of the deceased.
o NB: Once again, the possibility of mistake is not considered by this rule.
12
Evidence
Opinion Evidence

The Rule: Opinion evidence is generally inadmissible.
(Graat)
o Historically: Evidence going to the “ultimate issue” was always inadmissible. Although this
rule is now dead, it still influences our analysis. It also lives on in two firm exceptions:
 One may never offer an opinion on the state of domestic law (purview of the court)
 One may never offer an opinion about credibility directly (purview of the jury)
Lay Opinion Evidence
 Certain lay opinions are presumptively admissible: Identification of handwriting, persons and
things; Apparent age; The bodily plight or condition of a person, including death/illness; The
emotional state of a person (e.g. angry, depressed); The condition of things (e.g. shabby, new);
Certain questions of value; Estimates of speed and distance.
(Graat)
 General conditions for admissibility of lay opinion evidence: The evidence must…
(Graat)
o Be helpful – the witness must be in a better position (than the jury) to form the conclusion.
o Be within common knowledge – a layperson must be able to form an accurate opinion.
o Be just an "abbreviated version of the witness’ factual observations” in a situation in which
it would be cumbersome or impossible to break down the facts.
 Example: Lay opinion evidence regarding whether a person's ability to drive was impaired by
alcohol is an admissible opinion, even if it goes to the ultimate issue
(Graat)
Expert Opinion Evidence
o General Rule: Expert Opinion evidence is admissible if 4 conditions are met:
(Mohan)
 The expert is properly qualified (just need a special knowledge/expertise that the jury lacks)
 The evidence must be relevant – this is a cost-benefit analysis:
 What are the dangers of the evidence (cost, delay, usurpation)
 What is the value of the evidence (is it reliable?)
 NB: Assessing relevant requires examining the legal issues the evidence relates to(Lavallee)
 The evidence must be necessary in assisting the trier of fact.
 The evidence must not be caught by any other exclusionary rule (“Duh” – Berger)
o Novel Science:
 An area of science may be novel if:
(J-L.J. aff’d Trochym)
 The theory or technique is not sufficiently established in the scientific community or is
being used in a new way.
 The courts have not yet established a practice of admitting it.
 Previously established techniques that are under new scrutiny due to new knowledge.
 Special Scrutiny: When dealing with novel science, reliability is tested by asking:
(J-L.J.)
This falls under the  Whether the technique can be and has been tested
relevance inquiry  Whether the technique has been subject to peer review and publication
in Mohan.
 The known or potential rate of error; and,
 Whether the theory or technique used has been generally accepted.
 Example: Hypnosis is a "novel science" such that evidence flowing from (or tainted by) it
is not sufficiently reliable to be admissible.
(Trochym)
 Example: Expert opinion evidence regarding how a battered woman might reasonably
apprehend harm, even when that harm is not imminent, was admitted.
(Lavallee)
 Relevance: Self-defence requires reasonable apprehension of harm and a reasonable
belief that there was no alternative. Thus, this expert evidence is relevant.
 Necessity: The average fact-finder would not be able to appreciate why ∆'s
apprehension/belief might be reasonable unless expert opinion evidence is given.
13
Evidence
Extrinsic (Policy-Based) Exclusions
Privileges
Class Privileges
NB: Solicitor-client privilege is “quasi-constitutional” (McClure), and is the “highest privilege
known to law” (Smith). Although citable cases are listed here, the rule itself needs no authority for
its existence; its origins are ancient, and today it is an integral part of the fabric of our legal system.
Solicitor-Client






Rationale: To preserve (a) relationship of trust between lawyer/client, (b) full/frank communication
between lawyer/client, and (c) the existence/effectiveness of Canada's legal system (Foster Wheeler)
Protects: Any communication made with a lawyer and all information contained therein. (Pritchard)
Held by: The client.
(Pritchard)
Requirements: The communication must (a) be between a solicitor and a client, (b) entail the
seeking of legal advice, and (c) be intended to be confidential.
(Solosky)
o Includes in-house/government counsel giving legal advice in their role as legal advisor (Pritchard)
o Agency: Includes communications with employees or contractors of the lawyer (e.g. doctors)(Smith)
Temporal Scope: Forever (even after the client's death)
o Exception: On matters relating to a will, the privilege expires on the death of the client.
Exceptions:
o Exceptions only admit as much information as is absolutely necessary.
(Descoteaux, Smith)
 This is "as restrictive a test as may be formulated, short of an absolute prohibition" (Goodis)
o Criminal Communications: A communication that is in itself criminal is not privileged.
 This includes legal advice for facilitating criminal activity.
o Public Safety: Lawyers may disclose communications that indicate a risk to public safety. (Smith)
 NB: This disclosure is optional in BC, but is mandatory elsewhere.
 Requirements:
(Smith)
 Clarity: "Is there a clear risk to an identifiable person or group of persons?"
 An identifiable person/group must be at risk. Higher likelihood just increases clarity
 Factors in assessing likelihood: Evidence of long-range planning; specific method
of attack requested; prior history of [threats of] violence; prior history similar to
present plans; history of violence is of increasing severity
 Seriousness of risk: Must be serious bodily harm or death (or serious psych. harm? –Smith)
 Imminence of risk: The more clear the risk, the less strictly this is required.
 Example: ∆ reveals (to lawyer’s psychiatrist) that his assault was a trial run; he has a series
of meticulously planned murders that he still intends to do (unclear when). Admitted. (Smith)
 Procedure: If circumstances warrant [e.g. imminence pressing], you could go straight to the
threatened party or police without asking the court for permission to breach privilege.
o Innocence at Stake: In a criminal case, if ∆ believes that a privileged communication contains
information critical to his defence, he can make a McClure application for its disclosure (McClure)
 Two Two-Part Tests of the McClure application:
(McClure, aff’d Brown)
 Threshold test: ∆ must establish that:
 The information that ∆ is seeking in unavailable from any other source
 ∆ is otherwise unable to raise a reasonable doubt as to his or her guilt.
 Substantive test: Only proceed to this if the threshold test is met.
 ∆ must establish an evidentiary basis on which to conclude that there is a
communication that could raise a reasonable doubt. (NB: ∆ hasn’t seen it yet)
 If there is such a basis, the judge will examine the file to determine whether there is
something in the communication that is likely to raise a reasonable doubt.
 Use Immunity: The holder of the privilege that was breached is rendered immune from the
use of that information against them (as well as any information deriving therefrom) (McClure)
14
Evidence


NB: McClure applications will "rarely" succeed – that's by design.
(Brown)
Example: ∆ charged, but P admits to his girlfriend and his lawyer that P did it.
(Brown)
 The information was available from another source (P's girlfriend)
 ∆ had circumstantial evidence pointing to his innocence (otherwise able to raise a doubt)
Litigation





Rationale: Letting parties prepare their arguments in private promotes the efficacy of litigation(Blank)
Protects: Documents made for the dominant purpose of litigation
(Blank)
Held by: The client (including self-represented litigants)
(Blank)
Temporal Scope: Prior to and during the trial; when litigation ends, so does the privilege.
(Blank)
History: Used to be conflated with solicitor-client privilege, but is actually a distinct rule.
Spousal





Rationale: Protecting the special relationship between spouses (also incompetency rationales?)
Protects: Communications made by one spouse to another during their [legal] marriage. (CEA s. 4(3))
Held by: The listening spouse (NB – not the speaker, who holds it in the US)
Temporal Scope: The duration of the marriage
This relates to Spousal Incompetency. Privilege only matters if the spouse is on the stand. (See p. 2)
Informer





NB: This only applies to police informants (not media informants)
Rationale: Promoting the reporting of crime and protecting informers from criminal retribution(Liepert)
Protects: Any info. that might reveal the informant's identity, incl. small and innocuous facts(Liepert)
Doubly held: Technically held by the Crown, but the Crown cannot waive (or fail to raise) it
without the informant’s consent. (The technicality is often ignored; both are said to hold it) (Liepert)
Innocence at Stake Exception: Different from the McClure test:
(Liepert)
o ∆ must show some basis that, without disclosure, ∆'s innocence is at stake
o The judge will then review the information to confirm that it is necessary
o If it is, the judge should only reveal as much information as is necessary
 NB: Before disclosure, the Crown is given the option to stay the proceedings
o If the Crown proceeds, only the information essential to establish innocence is given to ∆.
Example: Confidential call to Crimestoppers re: ∆'s crime. ∆ requests the tip sheet from R, gives
only mere speculation of relevance to ∆’s case. No basis for innocence at stake exception.
(Liepert)
Case-by-Case Privilege
 The Wigmore test for recognizing a case-by-case privilege:
(Slavutych)
o Communication must originate in confidence.
(Slavutych)
o The confidence must be essential to the maintenance of the relationship
(Slavutych)
o The community must believe that relationship ought to be "sedulously fostered"
(Slavutych)
 Charter freedoms can be considered here (and elsewhere, of course, but esp. here) (Gruenke)
o The injury resulting from disclosure must be greater than the benefit gained.
(Slavutych)
 This criterion does “most of the work” – i.e. it’s the most important.
(National Post)
 Example: Confidential tenure form sheets are privileged; essential to faculty relations with
administration, that should be fostered, and the benefit outweighs the harm.
(Slavutych)
 Example: ∆ is witness (party?) to a murder, talks to her church counsellor and pastor about it. She
intends to turn herself in, wants to ease her conscience. No expectation of confidentiality. (Gruenke)
 Example: π sues ∆ civilly for distress caused by sexual assault. ∆ demands disclosure of π's
psychiatrist records. π began therapy on the assurance of confidentiality. Factors 1-3 check out, but
balancing the benefit between privacy/equality and truth-seeking says: let some of it in.
(Ryan)
o Court demands partial disclosure (documents edited by judge, only seen by counsel, not ∆)
15
Evidence


Example: ∆'s reporter has a document from a confidential source. Publication of that document
leads to criminal charges (forgery of that document) against ∆. Factors 1-3 check out. (National Post)
o Balancing: This is (1) directly-related (2) physical evidence (3) on a criminal charge. Each of
these promotes disclosure (truth-seeking function accentuated). Privilege denied. (National Post)
No new class privileges are likely to be found (a new class privilege would need policy reasons at
least as strong as for solicitor-client privilege – Slavutych; no psychiatrist-patient privilege – Ryan)
3rd-Party Records – Privacy Concerns in Evidence Law




This isn’t a privilege issue; we’re asking “what must be produced”, not “what may be excluded”.
All Offences: Apply the O’Connor test for production of 3rd-party records:
(O’Connor)
o If the record has been provided to the Crown, that’s it. It must be produced.
(Stinchcombe)
o Stage 1: Likely Relevance (Before the judge has seen the record)
(O’Connor)
 ∆ must establish that there is a "reasonable possibility that the information is logically
probative to an issue at trial or the competence of a witness to testify"
 This is a "low" burden, and there is not yet any consideration of privacy rights.
o Stage 2: Judicial Balancing (If “likely relevance” found, judge sees record, continues) (O’Connor)
 Balance salutary and deleterious effects of production, ask whether non-production would
constitute a reasonable limit on full answer and defence.
 Factors: (1) Necessary for full answer/defence? (2) Probative value of the record? (3)
Nature/extent of reasonable expectation of privacy? (4) Production based on discriminatory
belief/bias? (5) What is the potential prejudice to complainant's dignity/privacy/security?
Sexual Offences (listed in CC s. 278.2): Apply the statutory regime:
(CC ss. 278.1-278.9)
o Note that Stinchcombe doesn't apply; the statute applies to Crown records as well.
o Stage 1: Likely Relevance
(CC s. 278.5)
 Lists 11 assertions that, without other evidence, are not enough to establish this. (CC s. 278.5)
 This provision just prevents a "bald assertion" of one of the bases; if there’s evidence
that supports one of these bases, this provision doesn’t oppose its sufficiency.
(Mills)
 Prof: You always have to bring evidence. This basically discards the provision.
 Production of the record must be necessary in the interests of justice
(CC s. 278.5(1)(c))
 Factors: Lists the 5 factors from the majority in O’Connor and 3 factors given in dissent
by L’Heureux-Dubé J: (6) Society's interest in reporting sexual offences (7) Society's
interest in treatment of victims (8) Effect on integrity of the trial process (CC s. 278.5(2))
 These factors are just advisory; they are to be "taken into account".
(Mills)
 If there is uncertainty as to necessity, err on the side of production [to the judge]. (Mills)
o Stage 2: Judicial Balancing
(CC s. 278.7)
 The judge reads the record and repeats the balancing from stage 1 (same factors)
Again, these are only "to be taken into account"; don't have "controlling weight"
(Mills)
Public Interest and Crown Immunities

General provision: Covers claims of general federal public interest. Procedure:
(CEA s. 37)
o A minister of the Crown or another public official can object to disclosure of information on the
basis that it is necessary for a specified public interest.
o There is then a hearing by a provincial superior court or federal court judge.
o The judge looks at the information and determines whether the public interest benefits more
from disclosure or secrecy, and then chooses to: (1) order unconditional disclosure, (2) disclose
with conditions, or (3) prohibit disclosure.
 In a criminal case, if a judge decides that the information can't be disclosed, then the judge
may do "anything necessary" to ensure fairness, including issuing a stay.
(CEA s. 37.3)
16
Evidence



National security, national defence and international relations:
(CEA ss. 38-38.15)
o Scope: Covers “potentially injurious” or “sensitive” information – info. that, if disclosed
publicly, could injure international relations or national defence or national security, or info.
that relates to those topics that the government is taking steps to safeguard.
(CEA s. 38)
o Anyone who is involved with/expects such disclosure must alert the federal AG
(CEA s. 38.01)
o Jurisdiction: If a claim is made under s. 38, it can only be heard by a Federal Court judge.
o After disclosure is ordered [but before it has occurred], the federal AG may personally issue a
certificate to prevent disclosure. This cannot be appealed.
(CEA s. 38.13)
Cabinet Secrecy: Where a minister of the Crown or the Clerk of the Privy Council issues a
certificate claiming Cabinet secrecy, it cannot be disclosed. Period. No judicial balancing. (CEA s. 39)
o Only applies to documents less than 20 years old (4 years for discussion papers)
(CEA s. 39(4))
o A non-exhaustive list of eligible types of Cabinet documents is given.
(CEA s. 39(2))
o This provision is constitutional; cabinet secrecy is "essential to good government"
(Babcock)
 A court can review the certificate only to ensure that the statute is satisfied; did the right
party sign it, does the document fall under a category, has it hitherto been confidential?
 A court can also review the surrounding circumstances to ensure that the certificate has been
issued as a bona fide exercise of delegated power.
 Other than that, the government official issuing the certificate does all the balancing.
Common law: Where disclosure of a government secret is sought, it is given to the judge who then
assesses whether the public interest is best served by disclosure or secrecy.
o The statute has largely supplanted this federally, but it is still relevant provincially.
Statements of the Accused
Self-Incrimination
 Statutory Protection: A compellable witness who is forced to testify can get a "use immunity" that
prevents the state from using that statement against that person in future proceedings.
(CEA s. 5)
o Issue: The witness has to apply for it contemporaneously, or the immunity does not vest (CEA s. 5)
 Charter Protection: "A witness who testifies in any proceedings has the right not to have any
incriminating evidence so given used to incriminate that witness in any other proceedings, except in
a prosecution for perjury or for the giving of contradictory evidence."
(Charter s. 13)
o Read together with Charter ss. 11(c) [∆ not compellable] and 11(d) [presumed innocent] (Dubois)
o The central issue here is compellability. You may not compel a person to take the stand (s.
11(c)); The Crown may not do indirectly what s. 11(c) prevents them from doing directly. (Dubois)
 Contexts where this is relevant:
o ∆ makes a statement in the course of investigation [pre-trial]. This is confession, not protected.
o ∆ is compelled to take the stand in a trial. That testimony is privileged in a later trial against ∆.
o ∆ takes the stand voluntarily at trial, does not testify on retrial. The original testimony is
privileged in a retrial
(Dubois)
o ∆ takes the stand voluntarily at trial, testifies on retrial. Testimony is not privileged at retrial(Henry)
 NB: This applies even if you take the stand and do not contradict your previous testimony,
but choose to only give a portion of the previous testimony.
 Policy: The s. 13 protection evaporates because, by admitting the evidence, we’re not
forcing ∆ to take the stand now – ∆ chose to take the stand here and in the previous trial.
 If evidence would not have been found against you but for the earlier compelled testimony, a
derivative use immunity may apply.
(R. v. S.(R.J.))
o Burden is on the Crown to show on the BoP that finding the evidence was inevitable.
o This derives from reading Charter ss. 7, 11(c) and 13 together.
17
Evidence
The Common Law Confessions Rule
 This results in exclusion without further balancing if met.
(Oickle)
 The Rule: For statements made by ∆ to a person in authority, the Crown must establish BRD that
the statement was voluntary; i.e. it was not the product of a will overborne by: (1) threats,
promises, or inducements; (2) oppressive circumstances; (3) lack of an operating mind
(Oickle)
o Note: Police trickery that would "shock the conscience of the community" is a separate ground
for rejecting the confession. It isn’t combined with the above factors.
 This is a high bar: It must rise to the level of making ∆ a "tool in the hands of police"
(Spencer)
o Inducements are to be expected; the question is whether ∆’s will was overborne.
(Spencer)
 Example: ∆ and his girlfriend are charged with robbery. Police say she's been charged, ∆ asks to
see her and for leniency for her. Police rejects, ∆ confesses. Admitted – not overborne
(Spencer)
 Example: Police polygraph ∆, exaggerate accuracy, threaten a polygraph on his girlfriend (but not
as a suspect). ∆’s distraught, but not “emotionally disintegrated”. Confession admitted
(Oickle)
Pre-Trial Silence
 Pre-trial silence can’t be used against ∆; inadmissible absent "real relevance and a proper basis"(Chambers)
 Exception: Alibis must be disclosed in a timely manner, such that the Crown can investigate before
the trial. Failure to mention it may be used to infer that the defence doesn't stand up
(Turcotte)
o Failure to testify on one’s alibi defence can also be held against ∆
(Noble)
 Advise the jury so as to contradict the “intuitive impulse” to link silence with guilt.
(Turcotte)
 Example: ∆ shows up at a police station asking for a police car to be sent to a ranch, but won't
explain why. Police find 3 axe-murdered bodies. ∆’s silence can’t be used as “consciousness of
guilt” or “post-offence conduct” or anything else, even though it’s sketchy. End of story
(Turcotte)
Silence at Trial
 See Refusal of the Accused to Testify at p. 3.
Exclusion of Evidence Under Charter s. 24(2)
Today
 Purpose: To ensure the long-term integrity of the system (not to punish the state)
(Grant)
o The goal is to avoid further damage to the system through admission/exclusion.
o Each judge must take a long-term, forward-looking, societal perspective.
 The Rule: Consider three lines of inquiry (no overarching rule on how to balance these):
(Grant)
o Seriousness of the Charter-infringing state conduct: (1) Is this conduct flagrant, willful,
frequent? (2) Did the police have a good faith basis for their actions?
o Impact of the breach on ∆’s Charter-protected interests (degree of infringement)
o Society's interest in the adjudication of the case on its merits: The key concern is the impact on
the trial's truth-seeking function by exclusion.
 Major factors: The evidence’s (1) reliability and (2) importance to the Crown's case.
 NB: You can also look at the seriousness of the offence, but it cuts both ways (∆'s rights are
more important, and society's interest is stronger, so it's usually a wash)
Historically
 Old Test:
o Would admitting the evidence adversely affect the fairness of the trial?
 Evidence that is conscriptive and not discoverable is automatically excluded.
 Derivative evidence deriving from conscriptive evidence is also conscriptive
18
(Collins)
(Collins)
(Stillman)
(Stillman)
Evidence

 Evidence is discoverable if (1) there was an independent source for the evidence and
(2) discovery of the evidence was inevitable.
(Stillman)
o How serious was the Charter violation?
(Collins)
o Would the exclusion of the evidence bring the admin. of justice into disrepute?
(Collins)
Example: ∆ keeps marijuana in a bus depot locker. Police search it without warrant, arrest ∆.
Excluded; not conscriptive, but the breach was “very serious” (casual approach to ∆’s Charter
rights), and the evidence is central to Crown’s case.
(Buhay)
o NB: The court notes that a narcotics charge is serious, but pot isn’t as serious as heroin. This
factors into the assessment of Collins factor #3. Does this have implications for Grant #3?
Oral History – Aboriginal Cultures and the Common Law






To be an Aboriginal right, an activity must be an element of practice/custom/tradition integral to
the distinctive culture of the Aboriginal group claiming the right.
(Van der Peet)
o "Integral" – "one of those things which made the culture of the society distinctive - that it was
one of the things that truly made the society what it was"
(Van der Peet)
o This is assessed as of the time of European contact 1792
o For the Métis, the test uses a different time – the effective assertion of European control.
Proof of Aboriginal title:
(Van der Peet)
o An Aboriginal group must prove that it occupied the land exclusively at the time of sovereignty
o If present occupation is relied upon as proof of pre-sovereignty occupation, there must be
continuity between present and pre-sovereignty occupation.
Oral histories may provide evidence of:
(Mitchell)
o Ancestral practices and their significance that are otherwise unavailable.
o Aboriginal perspectives on the right claimed.
Formal evidentiary issues:
o Scope of relevance is enormous (the entirety of a culture is at issue)
o Heavy reliance on history (normally admitted through documentary records, not possible here)
 NB: Oral history evidence is admissible provided it is useful and reasonably reliable(Marshall)
o Experts become critical (Numerous experts are needed – ethno-botantists, legal historians, etc.)
o Burden of proof is on the Aboriginal group claiming the right/title (though they were here first)
Oral history poses particular problems for the common law of evidence:
o Different values: Oral histories have a lesser focus on "what happened at this time in this
place" and a stronger focus on narrative and interpretive meaning.
o Oral histories embedded in community practices are very different from the Western concept of
oral transmission. They have institutional support promoting accuracy and completeness.
o Framing: Oral histories have implicit assumptions that common law courts are unfamiliar with.
Experts (members of the community?) may be necessary to communicate these to the courts.
o Content: Oral histories may contain material undermining the authority of the court hearing it.
The [Common Law] Legal Stance:
o Courts should be seized with a consciousness of the special nature of Aboriginal claims, and of
the evidentiary difficulties inherent in asking for proof of activities originating in pre-writtenhistory
(Van der Peet)
o Oral histories should be places on equal footing with typical common law evidence (Delgamuukw)
o While evidence of oral histories should not be undervalued, neither should it be weighted in a
manner that conflicts with evidence law (which embodies "general principles of common
sense")
(Mitchell)
19
Evidence
Index of Cases
Short Name
Ct./Year
Adgey SCC 1973
Arp SCC 1998
Babcock SCC 2002
Blank SCC 2006
Brown SCC 2002
Buhay SCC 2003
Chambers SCC 1990
Clark OCA 1983
Clarke OCA 1998
Collins SCC 1987
Corbett SCC 1988
Couture SCC 2007
Darrach SCC 2000
Dinardo SCC 2008
Dubois SCC 1985
Giraldi BCCA 1975
Graat SCC 1982
Grant SCC 2009
Gruenke SCC 1991
Handy SCC 2002
Henry SCC 2005
Hitchcock UK 1847
KGB SCC 1993
Khan SCC 1990
Khela SCC 2009
Khelawon SCC 2006
Krymowski SCC 2005
Kyselka OCA 1962
Lavallee SCC 1990
Levasseur ACA 1987
Liepert SCC 1997
Lifchus SCC 1997
Lucier SCC 1982
Lyttle SCC 2004
Makin UK 1894
Marquard SCC 1993
Marquard SCC 1993
McMillan OCA 1975
McNamara OCA 1981
McNamara OCA 1981
Mills SCC 1999
Mohan SCC 1994
Mohan SCC 1994
National Post SCC 2010
Noble SCC 1997
O'Connor SCC 1995
Oickle SCC 2000
P(R) OHC 1990
Pelletier OCA 1978
Keywords
∆ pleas "Guilty, I guess". Reviewing guilty pleas.
∆ charged with 2 murders; used as similar fact evidence for each other.
Underpaid gov't lawyers. Public interest immunity
Litigation privilege. Self-represented polluter of rivers.
Refining McClure's Innocence-at-stake exception
Pot in a bus depot locker. s. 24(2)
Lawyer conspiring to steal cocaine. Right to silence.
Ex-wife kills new wife. Spontaneous Exclamations exception.
Witness' bad reputation for veracity; impeaching credibility
Old test for s. 24(2)
CEA s. 12 – TJ's discretion in admitting ∆'s past convictions
∆ kills two people, tells his counsellor, then marries her. Spousal incom.
Sexual history admissible outside of the twin myths. Victim's character.
Taxi driver sexually assaults retarded girl. Prior consistent statements.
Murderer doesn't testify on second trial. Self-Incrimination protection.
Volkswagon theft. Evidence of prior consistent statements.
Impaired driving. Lay opinion exception.
Sidewalk detention. New s. 24(2) test.
Born-again Christian talks to pastor. Religious privilege.
∆ has a habit of sexual assaults according to ex-wife. Similar facts.
Pot growers revise their story on retrial. Retrials and s. 13.
Brewing malt and taking bribes; defining "collateral facts"
∆ stabs v, friends rat; prior incon. stmts are hearsay.
Dr. puts his "birdie" in a little girl's mouth. Principled hearsay.
Contract killing; killers testify against buyer
Abusing seniors in retirement home; principled approach to hearsay.
Does "gypsy" = "Roma"? Judicial Notice.
3 ∆s rape 16yo retarded girl; Dr. attests to her credibility
Battered woman syndrome. Expert opinion evidence
∆ steals a truck and car adduces no character evidence.
Informer privilege. Growing pot in the basement.
Fraudulent stockbroker; describing "reasonable doubt"
Arsonist admits ∆ hired him. Statement against penal interest.
Beaten for a gold chain. Good faith basis for cross-exam.
∆s paid to "adopt" babies, bury them in yard. Similar fact evidence.
3-y.o. girl's face burned on hot stove by grandma. Child testimony.
3-y.o. girl's face burned on hot stove by grandma. Credibility.
∆'s psycho. wife could have killed baby; 3rd party character evidence.
Businessman fighting for democracy; R. can adduce character evidence.
Businessman fighting for democracy; R. can adduce character evidence.
Post-O'Connor amendments are constitutional.
Paediatrician & pedophile. Psychological evidence re: disposition.
Paediatrician & pedophile. Expert opinion evidence.
Reporter with alleged forgery. Confidential source privilege?
Car thief refuses to testify. Silence is not evidence.
Private 3rd party records, esp. w.r.t. sexual assault
Arsonist gets gently interrogated. Voluntariness.
Tyrannical boyfriend/husband; statements to mental state.
3 roommates - 1 dead; statement against penal interest.
20
Page
C 922
C 495
C 820
S 183
C 774
web
C 532
C 162
C 357
web
C 374
web
web
S 99
C 882
C 343
C 271
web
C 843
C 499
S 194
C 391
C 219
C 208
web
S3
C 947
C 332
C 281
C 419
C 808
C 988
C 172
C 388
C 466
C 59
C 333
C 453
C 413
C 431
C 875
C 441
C 277
web
C 71
C 860
C 580
C 189
C 170
Evidence
Short Name
Potts
Potvin
Pritchard
Rafael
Rowton
Ryan
Salituro
Scopelliti
Slavutych
Smith
Smith
Smith
Spencer
Starr
Stillman
Stirling
Straffen
Subramaniam
Toohey
Trochym
Turcotte
Vetrovec
Watson
Wildman
Wright
Wysochan
Zundel 1
Zundel 2
Ct./Year
OCA 1982
SCC 1989
SCC 2004
OCA 1972
UK 1865
SCC 1997
SCC 1991
OCA 1981
SCC 1976
UK 1915
SCC 1992
SCC 1999
SCC 2007
SCC 2000
SCC 1997
SCC 2008
UK 1952
PC 1956
UK 1965
SCC 2007
SCC 2005
SCC 1982
OCA 1996
OCA 1981
ExCt 1837
SCA 1930
OCA 1987
OCA 1990
Keywords
Speeding in Ottawa. Judicial Notice.
Jewellery theft goes south. Hearsay – prior judicial proceedings
Gender discrimination at Sears. Solicitor-client privilege.
∆ lies about filing income tax returns – collateral facts bar.
Naughty schoolmaster adduces character evidence
Sexual assault victim talks to Dr. Partial privilege.
Separated husband forges wife's signature. Spousal incompetence.
Gas station owner shoots 2 youths. Character of victims.
Prof. fills out scathing review. Case-by-case privilege.
∆ kills three wives; "bathtub murders". Similar fact evidence.
Phone calls to mom; upholding Khan – principled hearsay.
Public safety exception to solicitor-client privilege
∆ confesses to talk to his girlfriend. Inducement.
Autopac scams and jilted lovers. Hearsay – state of mind.
Conscriptive vs. Discoverable evidence. s. 24(2)
Who's the driver? Prior consistent statements.
∆ killed a girl confessed to 2 similar murders. Similar fact evidence.
∆ holding ammo. "I am a Communist" – hearsay.
Weepy british boy getting "beaten up"; impeaching credibility.
Jealous boyfriend. Post-hypnosis evidence, novel science.
3 axe murders; ∆ notifies police but won't answer questions.
Testimony of accomplice to heroin trafficking. Corroboration.
Gang hit. V's friend testifies V always carried a gun; relevance?
Girl killed with a hatchet. Mom's statements ≠ hearsay.
Testamentary gift of land; implied hearsay re: testator's mind.
Wife gets shot, calls for husband. Hearsay and mental state.
Holocaust-denial. Judicial notice not taken of Holocaust.
Partial judicial notice taken of Holocaust.
C is the coursebook
Page
C 937
C 174
C 756
C 391
C 418
C 853
C 20
C 459
C 835
C 468
C 212
C 763
S 112
C 246
web
S 93
C 469
C 132
C 353
S 64
S 102
C 399
C 85
C 134
C 140
C 145
C 942
C 945
S is the supplementary materials
21
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