Criminal Evidence
Prof. Alana Klein
Suzanne Amiel
Winter 2011
CRIMINAL EVIDENCE SUMMARY
I. INTRODUCTION .............................................................................................................................................................. 3
What Is Evidence?...................................................................................................................................................................................3
The Role of Evidence Law ...................................................................................................................................................................3
Sources of the Law of Evidence ........................................................................................................................................................3
The Trial Process.....................................................................................................................................................................................4
The Fundamental Rule of the Law of Criminal Evidence .....................................................................................................4
Trends in the Law of Evidence ..........................................................................................................................................................5
II. RELEVANCE, PROBATIVE VALUE, AND PREJUDICIAL EFFECT ...................................................................... 5
Relevance ....................................................................................................................................................................................................5
Probative Value and Prejudicial Effect .........................................................................................................................................5
R. v. Watson (OCA 1996) .......................................................................................................................................................................................................... 6
R. v. Seaboyer (SCC 1991) ........................................................................................................................................................................................................ 7
III. CHARACTER EVIDENCE ............................................................................................................................................. 9
A. CHARACTER EVIDENCE TO PROVE THE PROPENSITY OF THE ACCUSED .............................................................................. 10
Reason for Relevance of Character Evidence #1: Character Directly in Issue ........................................................ 10
Reason for Relevance of Character Evidence #2: Character for Credibility............................................................. 10
Reason for Relevance of Character Evidence #3: Character as Circumstantial Evidence................................. 10
The Rules on the Use of Evidence of the Accused’s Character and Propensity:....................................................... 10
What Does the Accused Have to Do to Put His or Her Character in Issue? ............................................................... 11
R. v. McNamara et al. (No. 1) (OCA 1981) ..................................................................................................................................................................... 11
B. METHODS OF PROVING CHARACTER: ACCUSED PERSONS ..................................................................................................... 12
1. Reputation.......................................................................................................................................................................................... 12
R. v. Rowton (England 1865) .............................................................................................................................................................................................. 12
2. Specific Acts ....................................................................................................................................................................................... 13
R. v. McNamara et al. (No. 1) (OCA 1981) [Reprise] ................................................................................................................................................ 13
3. Psychiatric Evidence of Disposition ........................................................................................................................................ 14
R. v. Lupien (SCC 1970) .......................................................................................................................................................................................................... 14
R. v. Robertson (1975 OCA) ................................................................................................................................................................................................. 15
R. v. Mohan (1994 OCA) ......................................................................................................................................................................................................... 15
C. METHODS OF PROVING THE CHARACTER OF THIRD PARTIES I: OTHER SUSPECTS ........................................................... 16
R. v. McMillan (1975 OCA) .................................................................................................................................................................................................... 16
D. METHODS OF PROVING THE CHARACTER OF THIRD PARTIES II: VICTIMS ......................................................................... 17
R. v. Scopelliti (1981 OCA) .................................................................................................................................................................................................... 17
E. THE ACCUSED’S PRIOR BAD ACTS: THE PROBLEM OF “SIMILAR FACTS” ............................................................................ 18
The Old Approach to Similar Fact Evidence ............................................................................................................................ 18
Makin v. Attorney-General for New South Wales (1894 Privy Council, England) ..................................................................................... 18
R. v. Smith (1915, England) .................................................................................................................................................................................................. 19
R. v. Straffen (1952, England) ............................................................................................................................................................................................. 19
The New Approach to Similar Fact Evidence ......................................................................................................................... 20
R. v. Arp (1998 SCC) ................................................................................................................................................................................................................. 20
R. v. Handy (2002 SCC) ........................................................................................................................................................................................................... 20
IV. CREDIBILITY............................................................................................................................................................... 22
A. INTRODUCTION TO CREDIBILITY ................................................................................................................................................ 22
Demeanour Evidence ......................................................................................................................................................................... 22
Deference of Appellate Courts to Findings of Credibility at Trial ................................................................................. 23
B. SUPPORTING CREDIBILITY: THE RULE AGAINST OATH-HELPING AND ITS EXCEPTIONS ................................................. 23
1. Expert Evidence on Credibility.................................................................................................................................................. 23
R. v. Kyselka et al. (1962 OCA) ............................................................................................................................................................................................ 23
R. v. Marquard (1993 SCC) ................................................................................................................................................................................................... 24
2. Prior Consistent Statements ...................................................................................................................................................... 24
R. v. Giraldi (1975 BCCA) ...................................................................................................................................................................................................... 25
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R. v. Stirling (2008 SCC) ......................................................................................................................................................................................................... 25
R. v. Dinardo (2008 SCC) ....................................................................................................................................................................................................... 26
C. IMPEACHING CREDIBILITY ........................................................................................................................................................... 27
1. Witness’s Bad Reputation for Veracity ................................................................................................................................. 27
R. v. Clarke (1998 OCA) .......................................................................................................................................................................................................... 27
2. Expert Evidence on the Witness’s Abnormal Unreliability .......................................................................................... 28
Toohey v. Metropolitan Police Commissioner (1965 House of Lords) ........................................................................................................... 28
3. Prior Convictions ............................................................................................................................................................................. 28
R. v. Corbett (1988 SCC)......................................................................................................................................................................................................... 29
D. SOME ASPECTS OF CROSS-EXAMINATION ................................................................................................................................. 30
The Obligation to Cross-Examine a Witness One Intends to Contradict .................................................................... 30
The Necessary Foundation for Cross-Examination .............................................................................................................. 30
The Collateral Facts Bar ................................................................................................................................................................... 31
Attorney-General v. Hitchcock (1847, England) ........................................................................................................................................................ 31
IV. HEARSAY...................................................................................................................................................................... 32
A. WHAT CONSTITUTES HEARSAY & THE RATIONALE FOR ITS EXCLUSION............................................................................ 32
What Is and What Isn’t Hearsay? ................................................................................................................................................. 32
Subramaniam v. Public Prosecutor (1956 Privy Council) ..................................................................................................................................... 32
R. v. Wildman (1981 OCA) .................................................................................................................................................................................................... 33
Wright v. Tatham (1837 Ex. Ct.) ........................................................................................................................................................................................ 33
R. v. Wysochan (1930 SCA) .................................................................................................................................................................................................. 34
The Rationale for the Rule against Hearsay ........................................................................................................................... 34
B. THE PRINCIPLED APPROACH TO HEARSAY ............................................................................................................................... 34
R. v. Khan (1990 SCC).............................................................................................................................................................................................................. 35
R. v. Smith (1992 SCC) ............................................................................................................................................................................................................ 36
R. v. B.(K.G.) (1993 SCC) ........................................................................................................................................................................................................ 37
C. THE EXCEPTIONS TO THE RULE AGAINST HEARSAY ............................................................................................................... 38
Hearsay Exception #1: Res Gestae ............................................................................................................................................... 38
R. v. Clark (1983 OCA) ............................................................................................................................................................................................................ 39
Hearsay Exception #2: Statements by Parties ....................................................................................................................... 39
Hearsay Exception #3: Business Records ................................................................................................................................. 40
Hearsay Exception #4: Statements Against Penal Interest.............................................................................................. 40
R. v. Pelletier (1978 OCA)...................................................................................................................................................................................................... 40
Lucier v. The Queen (1982 SCC) ........................................................................................................................................................................................ 41
Hearsay Exception #5: Statements of Intention.................................................................................................................... 41
R. v. P.(R.) (1990 Ont HCJ) .................................................................................................................................................................................................... 41
R. v. Starr (2000 SCC) .............................................................................................................................................................................................................. 42
R. v. Khelawon (2006 SCC) ................................................................................................................................................................................................... 44
R. v. Blackman (2008 SCC).................................................................................................................................................................................................... 46
V. PRIVILEGES .................................................................................................................................................................. 46
A. CLASS PRIVILEGES: SOLICITOR-CLIENT PRIVILEGE ................................................................................................................ 46
Requirements of the Solicitor-Client Privilege ....................................................................................................................... 47
Pritchard v. Ontario (Human Rights Commission) (2004 SCC).......................................................................................................................... 47
Waiver of Solicitor-Client Privilege ............................................................................................................................................. 47
Exception #1 to Solicitor-Client Privilege: Facilitating a Criminal Purpose............................................................ 47
Exception #2 to Solicitor-Client Privilege: Public Safety .................................................................................................. 48
Smith v. Jones (1999 SCC) ..................................................................................................................................................................................................... 48
Exception #3 to Solicitor-Client Privilege: Innocence at Stake ...................................................................................... 49
R. v. Brown (2002 SCC) .......................................................................................................................................................................................................... 49
B. CLASS PRIVILEGES: INFORMER PRIVILEGE ............................................................................................................................... 50
R. v. Leipert (1997 SCC) ......................................................................................................................................................................................................... 50
C. CASE-BY-CASE PRIVILEGE ........................................................................................................................................................... 51
Slavutych v. Baker (1976 SCC) ........................................................................................................................................................................................... 51
R. v. Gruenke (1991 SCC) ...................................................................................................................................................................................................... 52
A.(M.) v. Ryan (1997 SCC) ..................................................................................................................................................................................................... 53
D. THE PRIVILEGE AGAINST SELF-INCRIMINATION ..................................................................................................................... 55
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Section 7 of the Charter .................................................................................................................................................................... 55
R. v. S(RJ) (1995 SCC) .............................................................................................................................................................................................................. 56
Section 13 of the Charter.................................................................................................................................................................. 57
Dubois v. The Queen (1985 SCC) ....................................................................................................................................................................................... 57
R. v. Henry (& Riley) (SCC 2005) ....................................................................................................................................................................................... 58
VI. COMPETENCY AND COMPELLABILITY OF WITNESSES ................................................................................ 59
A. THE ACCUSED’S COMPETENCE TO TESTIFY .............................................................................................................................. 59
R. v. Noble (1997 SCC) ............................................................................................................................................................................................................ 59
B. SPOUSAL INCOMPETENCY ............................................................................................................................................................ 60
R. v. Salituro (1991 SCC) ........................................................................................................................................................................................................ 61
R. v. Couture (2007 SCC) ....................................................................................................................................................................................................... 62
C. GENERAL COMPETENCE OF WITNESSES .................................................................................................................................... 63
Competence of Witnesses Over 14 Whose Mental Capacity is Challenged................................................................ 63
R. v. Marquard (1993 SCC) [Reprise] .............................................................................................................................................................................. 64
Competence of Witnesses Under 14 (Child Witnesses) ....................................................................................................... 65
VII. OPINION EVIDENCE ................................................................................................................................................ 66
A. LAY OPINION EVIDENCE............................................................................................................................................................... 66
R. v. Graat (1982 SCC) ............................................................................................................................................................................................................. 66
B. EXPERT OPINION EVIDENCE........................................................................................................................................................ 67
R. v. Mohan (1994 SCC) [Reprise] ..................................................................................................................................................................................... 67
R. v. Lavallee (1990 SCC) ....................................................................................................................................................................................................... 68
R. v. Trochym (2007 SCC) ..................................................................................................................................................................................................... 69
IX. CONCLUSION............................................................................................................................................................... 71
Key Goals of the Law of Evidence ................................................................................................................................................. 71
Trends in the Law of Evidence ....................................................................................................................................................... 71
I. INTRODUCTION
What Is Evidence?

Evidence consists of all the means by which any alleged matter of fact is established or disproved (Black’s
Law Dictionary)
The Role of Evidence Law



The basic question this class asks is as follows: what is true for legal purposes? Evidence law tells us
what information can be used and how to make that decision.
o Note that our notion of “truth” in the criminal justice system is associated with a constellation of other
values, however  it is not “just what happened”
The law of evidence developed on the basis of the jury, the people who decide what is true for legal
purposes. So the evolution of the law proceeded according to what the jury should or shouldn’t see.
o What the jury should be permitted to see (because it will help their fact-finding) is admissible; what the
jury shouldn’t be permitted to see (because it will distort their fact-finding, or would fail to promote
some other goal of the law of evidence) is inadmissible
 Note: evidence may be admissible to serve one purpose, but not for another
To summarize: the law of evidence is primarily concerned with the means of proof that can be put before
the trier of fact at trial, the permissible uses of the proof by trier of fact, and how the means of proof may
be presented/tested
Sources of the Law of Evidence


1. Common Law
2. Statutes
o No Canadian jurisdiction has enacted a comprehensive code of evidence
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Winter 2011
o
The federal Canada Evidence Act and the provincial evidence acts modify the common law on what
they do address (these statutes are near incomprehensible without an understanding of the common law)
o Criminal Code, Controlled Drug and Substances Act each have evidentiary provisions governing the
matters to which they apply
3. The Constitution
o The law of evidence is of course restrained by constitutional requirements
o The division of powers: s. 91 and 92 apply equally to the evidentiary rules governing the substantive
matters to which the sections relate
 Parliament has jurisdiction over criminal law and procedure; therefore, they also have legislative
jurisdiction over evidentiary rules applying to criminal law/procedure
 But see. s. 40 of the Canada Evidence Act – expressly incorporates provincial evidence acts
o The Charter: see ss. 11(d) (presumption of innocence), s. 11(c) (right not to be compelled as a witness
against oneself, s. 13 (right against self-incrimination), s. 7, s. 24

The Trial Process
1.
2.
3.
4.
The charging document (offence and facts)
Plea (guilty/not guilty)
Disclosure
Trial
a. Opening Statements (not evidence)
b. Crown’s Case
i. Crown’s role at this point is to prove beyond a reasonable doubt that the accused committed
each of the constituent elements of the offence
1. The Crown will lead evidence that tends to establish that the accused did so
ii. All evidence has to be produced through the testimony of a witness.
1. They will be examined in chief by the Crown (open-ended questions)
2. And cross-examined by the defence (leading questions)
iii. During the Crown’s case, there will be objections (the substance of this class)
1. 2 objections to admissibility – the evidence is excluded by a rule of law or policy, or
the evidence is more prejudicial than probative
c. Possible Motion for Directed Verdict of Acquittal
i. The defence asks the judge to dismiss the case because the Crown has not met their burden
of proof
d. Defence’s Case
i. Examination in chief of defence witnesses by defence counsel
ii. Cross-examination of defences witness by Crown
e. Jury Instructions
i. Jury will be instructed on the law which the judge has decided applies, the standard of proof,
how to use the evidence
f. Jury Deliberation
i. The jury applies the law to the facts they’ve decided are true
g. Verdict
i. Jury renders a decision without reasons
h. Possibility of Appeal (s. 686 Cr.C.)
The Fundamental Rule of the Law of Criminal Evidence
Every piece of information that is relevant to a fact in issue is admissible as evidence unless it is excluded
by some rule of law or policy.

This is based on the principle of access to evidence: we should give the jury access to all information
that could affect their decision
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So on what basis would we exclude relevant evidence? Relevant evidence may be inadmissible because:
o Admission would distort the fact-finding process of the court
 Evidence would lead a trier of fact to reason inappropriately, either because it is unreliable (trier of
fact may risk putting too much weight on it) or too prejudicial (trier of fact may follow an improper
line of reasoning on the basis of the evidence)
o Admission would prolong the trial/confuse the issues
o Admission would undermine some important value or policy, other than fact-finding
 Ex. s. 24(2) – value = proper administration of justice
 Ex. privilege – value = fostering the protected relationship, e.g. solicitor-client
o The manner in which it was obtained is inconsistent with the (adversarial) nature of the trial process
 Concerns issues like judicial investigations in a party-driven process, order and presentation of
evidence, etc
o Its probative value is outweighed by prejudicial effect (PE > PV)
 The trial judge has general residual discretion to exclude evidence that does not run afoul of any
exclusionary rule
Trends in the Law of Evidence


The trend is towards loosening the rules of evidence so that the jury can see more evidence than previously
o This is partially because there are less and less jury trials, and the fact-finder is now usually a judge,
who has legal training and knows how to use the various bits of information appropriately
Another trend is the movement away from categorical rules towards principled rules
o This trend has perhaps been spurred by the advent of the Charter, because Charter reasoning is
principled, broad, purposive – has encouraged evidence law to go the same way
o This trend promotes flexibility, thus enhancing the truth-seeking function of the court
o This flexibility does come at the cost of certainty and efficiency  has increased the length of trials
II. RELEVANCE, PROBATIVE VALUE, AND PREJUDICIAL EFFECT
Relevance



To know if something is relevant (and therefore admissible), have to ask: why is it being tendered?
Two considerations determine whether a piece of evidence is relevant:
o 1. Factual Relevance:
 Whether the evidence tends to make more or less likely the fact which it is tendered to prove
 McCormick: does the evidence offered render the desired inference more probable than it would be
without the evidence?
 Factual relevance is established at law when, as a matter of logic and human experience, the
evidence tends to prove the proposition for which it is advanced
o 2. Legal Relevance/Materiality:
 Does the evidence relate to a material fact?
 In criminal cases, material facts are the elements of the offence charged and the elements of any
defences in play
Relevance is a very low standard
o It’s also quite subjective
o If one person on the jury could find the evidence relevant in a chain of inferences leading to a
material fact, then the evidence is relevant and should be admitted
Probative Value and Prejudicial Effect

Probative Value: how much does the evidence really tend to prove the fact that it was tendered to prove?
o PV is different from weight: how much did the jury end up relying on that piece of evidence in their
ultimate decision? PV is more the judge’s prediction of how important the evidence (when used for a
legitimate purpose) is likely to be in the jury’s reasoning
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*** Do not confuse relevance/admissibility with weight. Evidence that is unreliable doesn’t necessarily
have to be excluded – it could just be assigned less ultimate weight.
 Relevance only asks if the jury should see the evidence, it does not say the evidence should be
relied upon in rendering a decision
Prejudicial Effect: how much does the information distort the jury’s truth-finding thought process?
o How likely is it that the jury, even if properly instructed, will use the evidence for an improper purpose?
o Note that prejudice can be to the accused, to the victim, etc.
o

R. v. Watson (OCA 1996)
Facts: W is charged with aiding and abetting murder. Victim was at his warehouse; W, along with Headley and
Cain, arrived. Not long after, the victim was shot and killed, and Cain was shot and wounded. There were two
guns involved in the shootings. Clive Mair, a friend of the victim’s, told the police that the victim always carried
a gun on him, although he never took it out. The defence tried to call Mair at trial to have him testify to those
facts, in order to support their theory H and C killed the vic in a spontaneous shootout with the victim, rather
than in a hit planned with W. The Crown’s theory is that this was a planned hit, and W was on lookout.
Issue: Is Mair’s evidence relevant? Holding: Yes.
Reasoning (Doherty JA):
 Corbett: all relevant evidence is admissible, subject to exclusions on clear grounds of law or policy, and
to the judge’s discretion to exclude matters that may unduly prejudice, mislead, or confuse the trier of
fact, or take up too much time in the litigation.
 Morris: no minimum probative value is required for evidence to be deemed relevant. Any matter that
has any tendency, as a matter of logic and human experience, to prove a fact in issue, is admissible in
evidence
 As a matter of logic and human experience, does the existence of FACT A make the existence or nonexistence of FACT B more probable than it would be without the existence of FACT A?
o As long as FACT B is itself a material fact in issue or is relevant to a material fact in issue, then
FACT A is relevant and prima facie admissible
 So in this case, there are 2 questions that must be asked:
o 1. Does the fact that the vic always carried a gun make it more likely that he had one when shot?
o 2. Does the fact that the vic had a gun make it less likely that W was a party to the murder?
 There is no direct connection between these two facts – but the possession of the gun can trigger a
chain of inferences which make W’s participation less likely
 1. Evidence of habit is circumstantial evidence that a person acted in a certain way on the occasion in issue
o A habit is a person’s repeated and specific response to a particular situation
o The fact that the vic always carried a gun makes it more likely that he had one on the occasion in
question – this evidence is therefore relevant to the fact that he was packing on the day of his death
 2. On the basis of all the evidence, the fact that the deceased was armed does make the defence theory more
likely, because the jury could make a chain of reasonable inferences to that effect
 So this evidence is relevant to a material fact in issue – but it can still be excluded if its probative value
is outweighed by its prejudicial effect
o Seaboyer: where evidence in issue is offered by the defence in a criminal case, it will be excluded only
where prejudice substantially outweighs probative value
 The probative value of this evidence is “significant” – it supports the defence theory
 There is some prejudicial potential for this evidence: indicates vic was a criminal. The jury might think he
deserved what he got and not convict despite the evidence
o There is already evidence in the trial suggesting that vic was involved in criminal activity
o Its use can be managed by a limiting instruction given to the jury that they should not treat the vic’s
criminality as a justification for his murder, but as evidence that W was not involved in it
Ratio: All relevant evidence is admissible. No minimum probative value is required for evidence to be relevant.
Relevance is considered in the context of all the evidence. Relevant evidence offered by the defence is only
excluded if its probative value is substantially outweighed by its prejudicial effect.
Klein on Watson:
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Morris: there is no such thing as evidence being a “little bit relevant” – it is either relevant or irrelevant. If
it’s a TINY bit relevant, it’s admissible
The question to ask for relevance: does Fact A make it more likely that Fact B occurred, which makes it
more likely that Fact C occurred
o In this case: does the fact that Sada usually carried a gun make it more likely that he was carrying a gun
on the day in issue, which makes it more likely that he got into a spontaneous shootout with Headley
and Cain?
o This is a chain of inferences leading to a material fact (the material fact being the accused’s defence)
o In order for circumstantial evidence to be admitted, inferences connecting facts need to be reasonable
 Doherty JA says he’s not passing judgment on the cogency of the reasoning – but he has to a little
bit in order to decide if the reasoning is rational
Mair’s evidence is decided to be relevant, but is it inadmissible because its prejudicial effect substantially
outweighs its probative value?
o It is decided to be more probative than prejudicial; its prejudicial effects can be dealt with by limiting
instructions given to the jury rather than exclusion of evidence
o ***Theme of the course: when can prejudicial effect be dealt with via limiting instructions rather than
exclusion of evidence?
Prejudicial evidence tendered by the defence:
o Note that at common law, defence evidence could not be excluded for prejudicial effect outweighing
probative value (only Crown evidence could be)
o Seaboyer changed this: said that the trial judge has discretion to exclude defence evidence where its
prejudicial effect substantially outweighs its probative value
 So the standard is DIFFERENT depending on who tenders the evidence – defence has more
leeway to introduce prejudicial evidence
 Crown evidence will be excluded if its prejudicial effect outweighs probative value at all
 Defence evidence will be excluded only if its prejudicial effect substantially outweighs
probative value
This legislation is at issue in Seaboyer – do these rules exclude relevant evidence whose PV > PE?
276. (1) In proceedings in respect of an offence under section 271, 272 or 273 [sexual assault], no evidence
s. 276
shall be adduced by or on behalf of the accused concerning the sexual activity of the complainant with
Cr.C.
any person other than the accused unless
(PAST –
(a) it is evidence that rebuts evidence of the complainant's sexual activity or absence thereof that was
stricken
previously adduced by the prosecution;
down)
s. 277
Cr.C.
(upheld)
(b) it is evidence of specific instances of the complainant's sexual activity tending to establish the identity of
the person who had sexual contact with the complainant on the occasion set out in the charge; or
(c) it is evidence of sexual activity that took place on the same occasion as the sexual activity that forms
the subject-matter of the charge, where that evidence relates to the consent that the accused alleges he
believed was given by the complainant.
277. In proceedings in respect of an offence under section 271, 272 or 273, evidence of sexual reputation,
whether general or specific, is not admissible for the purpose of challenging or supporting the
credibility of the complainant.
R. v. Seaboyer (SCC 1991)
Facts: s. 276 of the Criminal Code prohibits the defence from adducing evidence about the complainant’s sexual
history with people other than accused, except rebuttal evidence, evidence going to identity of the perpetrator, or
evidence relating to consent to sexual activity on the same occasion as the trial incident. s. 277 prohibits defence
from adducing evidence of the complainant’s sexual reputation for the purposes of impeaching her credibility.
Issue: Do these sections of the Criminal Code violate the accused’s right to a fair trial under ss. 7 and 11(d) of
the Charter? Holding: s. 276 – yes (with dissent); s. 277 – no.
Reasoning:
Majority (McLachlin J. + 6):
Purpose of the Legislation
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
The main purpose of the legislation is to abolish the old common law rules that permitted evidence of the
complainant’s sexual conduct which was of little probative value and calculated to mislead the jury
o Evidence of sexual conduct was routinely tendered to prove that the complainant had consented to the
alleged assault, and as undermining her credibility generally
 Three subsidiary purposes of the legislation: preserve the integrity of the trial, encourage the reporting of
sexual assault, protect the victim’s privacy
Principles of Criminal Evidence
 The right of the innocent not to be convicted is central to our criminal justice system. It finds expression in
the right to have a fair trial, to present full answer and defence (ss. 7, 11(d) of the Charter)
 Relevant evidence is admissible, unless its value is exceeded by its cost; possible costs are that the facts
offered may unduly arouse the jury’s emotions of prejudice, hostility, sympathy; create a side issue;
consume an undue amount of time; unfairly surprise the opponent
 Courts have been reluctant to restrict the scope of the evidence that the defence can bring, because do
not want to risk convicting the innocent
 The prejudice must substantially outweigh the value of the evidence before a judge can exclude
evidence relevant to a defence allowed by law. Do ss. 276-77 exclude evidence whose probative value is
not substantially outweighed by its potential prejudice?
Section 277
 A woman’s prior sexual conduct is completely logically unrelated to her tendency to lie on the stand
 The section is constitutional because it only excludes irrelevant evidence.
Section 276
 By contrast, the probative value of the evidence excluded by s. 276 is not always substantially outweighed
by its prejudicial effect – it overshoots the mark with its blanket exclusion
 s. 276 rules out a lots of categories of evidence that are relevant; sexual conduct explaining accused’s belief
in consent, victim’s motive to lie, explanations for the physical conditions on which the Crown relies to
establish intercourse or the use of force
 The problem with the provision is that it fails to distinguish between improper uses and legitimate
uses of sexual history evidence – it just excludes all evidence of sexual history, with exceptions
o Uses a “pigeon-hole” approach – but it is impossible to predict relevance of evidence in advance
by a series of rules/categories. Relevance is a function of other evidence in the case
 This section is not saved by s. 1 – fails on the minimal impairment step
The Law Now
 Trial judge has discretion to allow into evidence information about the victim’s sexual history (with the
accused or someone else) if it is for a legitimate purpose
o Trial judge has to weigh the PV of the evidence with its PE
o If it is admitted, need to give a limiting instruction to the jury as to its proper use
 See p. 111 for summary of majority reasons
Dissent (L’Heureux-Dubé + 1):
 The crime of sexual assault is plagued by myths and stereotypes: about “ideal” victims, ideal perpetrators,
ideal circumstances, etc  this contributes to it being underreported, underprosecuted, low conviction rates
 Jurors have been proven to be biased against complainants whose sexual history is given in evidence
 The evidence excluded by ss. 276-77 is irrelevant; any of the categories of relevant evidence listed by the
majority fit into the exceptions in s. 276, or are themselves improper modes of reasoning based on myth
Ratio: Exclusionary rules of evidence must not compromise the accused’s right to make full answer and defence
to the Crown’s case. For defence evidence to be excluded on the basis of its prejudicial effect, such effect must
substantially outweigh its probative value.
Klein on Seaboyer:
 The assumption of the legislation was that it only excludes evidence that is clearly irrelevant, or whose
prejudicial effect clearly outweighs its probative value
o So it does not compromise the accused’s right to make full answer and defence
 The majority does not agree with this assumption. It comes up with examples of relevant, admissible
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evidence that the provision excludes to show why it is unconstitutional (i.e. risks convicting innocent people)
The dissent agrees with this assumption. Aside from the enumerated exceptions, evidence of the
complainant’s sexual history is irrelevant or too prejudicial in relation to its probative value. So its
exclusion does not interfere with anyone’s right to make full answer and defence, since no one has a right to
lead irrelevant or inadmissible evidence
The dissent also does not want to leave the exclusion of this sensitive evidence to trial judges’ discretion,
because she does not trust them to avoid the myths she discusses
The difference in approach between the majority and the dissent:
o Majority takes a principle-based approach
 The majority does not prohibit certain kinds of evidence, they prohibit certain inferences
 They want to wait and see, case by case, what will be relevant or irrelevant; leave it to the trial
judge to decide
o Dissent takes a rules-based, pigeon-hole approach – less trust of trial judges’ discretion
Post-Seaboyer, the Legislature amended the Cr.C. to reflect the majority’s point of view
s. 276
Cr.C.
(Present
version)
(1) In proceedings in respect of an offence under [sexual offences], evidence that the complainant has
engaged in sexual activity, whether with the accused or with any other person, is not admissible to
support an inference that, by reason of the sexual nature of that activity, the complainant
(a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or
(b) is less worthy of belief.
(2) In proceedings in respect of an offence referred to in subsection (1), no evidence shall be adduced by
or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual
activity that forms the subject-matter of the charge, whether with the accused or with any other person,
unless the judge, provincial court judge or justice determines […] that the evidence
(a) is of specific instances of sexual activity;
(b) is relevant to an issue at trial; and
(c) has significant probative value that is not substantially outweighed by the danger of prejudice to
the proper administration of justice.
(3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or
justice shall take into account
(a) the interests of justice, including the right of the accused to make a full answer and defence;
(b) society’s interest in encouraging the reporting of sexual assault offences;
(c) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in
the case;
(d) the need to remove from the fact-finding process any discriminatory belief or bias;
(e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;
(f) the potential prejudice to the complainant’s personal dignity and right of privacy;
(g) the right of the complainant and of every individual to personal security and to the full protection and
benefit of the law; and
(h) any other factor that the judge, provincial court judge or justice considers relevant.
In summary, a piece of evidence is admissible when it can pass the following test:
1. Is the evidence factually relevant? I.e. Does it tend to prove/disprove the fact for which it is
tendered?
2. Is the evidence legally relevant? I.e. Is the fact that the evidence relates to legally significant in
establishing an element of the offence/defence at issue?
3. Is the evidence inadmissible on any ground of law or policy?
4. Does the prejudicial effect of the evidence (substantially) outweigh its probative value?
III. CHARACTER EVIDENCE

A person’s “character” is their propensity or disposition to behave a certain way (good OR bad)
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Common law has traditionally placed strict limits on the admissibility and use of character evidence
A. CHARACTER EVIDENCE TO PROVE THE PROPENSITY OF THE ACCUSED
Reason for Relevance of Character Evidence #1: Character Directly in Issue


Sometimes a person’s character is something that a party must prove as an element of its cause of action
For example, if the Crown makes a dangerous offender application under s. 753, they have to prove that the
person is dangerous and has a propensity to commit violence, and character evidence is direct evidence
Reason for Relevance of Character Evidence #2: Character for Credibility

Either party could establish honesty, dishonesty, or poor memory of a witness by means of character
evidence – we’ll see this below in the section on credibility
Reason for Relevance of Character Evidence #3: Character as Circumstantial Evidence



More commonly, evidence of a person’s character is circumstantial: that is, fact-finder is asked to infer that
because person has a certain character trait, he or she is more likely to have behaved in the manner alleged
The structure of the argument is always: the person is more likely to have done a certain thing on the
occasion in question because he or she has a disposition to behave that way
In this way, the character evidence is used as circumstantial evidence brought in support of an inference that
one of the constituent elements of the offence is met or not met
o ***This is the main use of character evidence that will be discussed in this section
Why is the Use of Character Evidence Limited?
 The Crown is never permitted to lead character evidence. Why?
o R. v. Rowton (1865): if the prosecution were allowed to go into such evidence, the entire life of the
prisoner would be “ripped up”
 The man on trial would therefore be overwhelmed by prejudice, instead of being convicted on the
affirmative evidence that needs to be produced at trial
o There is a risk the jury will use evidence of bad character to assume that because the accused is a bad
person, they are likelier to have committed the specific crime  this is a prohibited inference
 The defence is allowed to bring good character evidence to prove that the accused didn’t do it, however
o This is an accident of history – we do not want to deny the accused any avenue that could possibly
prove their innocence
 The idea is that bad character evidence will unduly inflame the jury more than good character evidence will
appease them
The Rules on the Use of Evidence of the Accused’s Character and Propensity:
1.
The Crown may never lead evidence of the bad character of the accused to show propensity (i.e. to
show that the accused is more likely to have committed the crime charged) [unless it meets the
threshold for similar fact evidence – see below, Handy]
2. The Defence may lead evidence of the good character of the accused to encourage the jury to
reason that the accused is therefore less likely to be guilty of the crime charged. The defence can
lead character evidence in three ways:
a. Reputation Witnesses: testify to the community reputation of the accused for relevant
character traits  never specific acts. (*this is hearsay!)
b. Psychiatric Expert Witnesses (have to meet a high threshold – see Mohan)
c. Accused’s Own Testimony: the accused can testify to their good character generally, and
they can assert specific acts
3. If the accused puts his character in issue, in one of the three permissible ways, the Crown may
respond with character evidence of their own:
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a. Rebuttal Reputation Witnesses (or cross-examination of defence reputation witnesses)
b. Rebuttal Expert Witnesses
c. Where the accused asserts their own good character, the Crown can adduce evidence of
past conduct (specific acts) in order to rebut it
i. This is ONLY to be used to rebut the defence’s evidence of good character; it
CANNOT be used to show propensity or to support an inference of guilt
ii. This can include prior convictions under s. 666 CEA
What Does the Accused Have to Do to Put His or Her Character in Issue?


Crown will often have information about the accused’s bad character
But the Crown may not lead character evidence unless the accused “puts his character in issue” – i.e.
accused himself leads evidence that he was unlikely to have committed the offence by virtue of his
character traits
o Why can the Crown respond to good character evidence? Because it would not be fair to let the accused
lead the trier of fact to think he’s a great guy when they have evidence that it’s not true
What does a person have to do to “put his character in issue”?
R. v. McNamara et al. (No. 1) (OCA 1981)
Facts: M et al. are charged with offences of conspiracy to defraud in the context of construction bid-rigging. In
chief, one of the accused, Simard, stated that “businesses should be run legally” and listed all sorts of situations
in which he exhibited honest business practices. The Crown had evidence that S had been previously convicted
of tax evasion, and the TJ allowed cross-examination of S on that fact.
Issue: How can the accused put their character in issue?
Reasoning (The Court):
 TJ ruled the evidence of accused’s prior bad acts (form of character evidence) was admissible on 2 grounds:
o 1. S had given evidence of his good character
o 2. Evidence tendered by the Crown was directly relevant to prove the falsity of S’s evidence
 An accused does not put his character in issue by denying his guilt, and repudiating the allegations made
against him; nor does he put his character in issue by explaining matters essential to his defence
 Accused is not entitled, however, to assert (expressly or impliedly) that he would not have done the
things alleged against him because he is a person of good character
 S’s statements could only have been made to induce the jury into thinking he was an upright man; whose
character was such that it was unlikely that he would commit the offence charged
Ratio: An accused puts his character in issue by making statements that try to show they are a good person, and
would therefore never commit the offence with which they are charged.
Commentary:
 After this case, it has been accepted that there are 3 ways an accused can put his character in issue:
o 1. By adducing evidence of good reputation (Rowton)
o 2. Testifying as to his own good character (McNamara)
o 3. Calling expert evidence of propensity or disposition
 Note that a prosecutor cannot get the accused to testify to their own good character in cross-examination as a
basis for the Crown to lead character evidence
Klein on McNamara:
 An accused can put his or her character in issue by calling character witnesses (either lay or expert)
 But most common way is that accused inadvertently puts their character in issue through their testimony
 In this case, the accused would not have put his character in issue if he had said: “I gave him a mandate to
run the company legally”
o But he does put it in issue by saying: “I gave him a mandate to run a company as it should be run,
legally” (implicit = I would not give an instruction to run the company illegally, because that’s wrong
and I’m not that type of person)
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B. METHODS OF PROVING CHARACTER: ACCUSED PERSONS
1. Reputation

All character witnesses can do is testify to an accused’s reputation in the community
R. v. Rowton (England 1865)
Facts: R was a schoolmaster charged with indecent assault. Called several witnesses who gave him an excellent
character as a moral, well-conducted man. Crown called a reply witness, a previous student at R’s school who
stated that R was immoral.
Reasoning:
 If the accused raises the issue of his character, the Crown is entitled to reply: the accused cannot give the
tribunal the impression of his good character when the reverse is true
 In proving character, the accused and the Crown are confined to evidence of good general reputation or
bad general reputation.
o They cannot give evidence of particular facts
R. v. Levasseur (Alta. CA 1987)
Facts: L was charged with stealing a truck from her employer. Her defence was that her employer had told her to
remove the truck, and therefore had colour of right. Part of her defence was evidence of her good character given
by her subsequent employer. TJ held this testimony was inadmissible because evidence of an accused’s general
reputation must be confined to evidence of the accused’s reputation in their residential community, not their
workplace.
Issue: Should this evidence have been admitted, and if so, does a new trial need to be held to correct the error?
Holding: Yes on both counts (with dissent as to need for a new trial).
Reasoning:
Majority (Harradence JA):
 Evidence of general reputation as to character should no longer be confined to reputation in the
residential community
 The conditions of life today are such that a person may have many reputations in many different places
 What the law desires is a trustworthy reputation; if it is found amongst a circle of people outside the
residential community of the accused, it should be received
 A new trial is required because this character evidence may have changed the jury’s mind
Dissent (Haddad JA):
 Acceptance of majority’s legal principles, but not the need for a new trial
 Evidence of reputation is seldom, if ever (apart from sentencing), of assistance to a trier of fact
 The evidence in question is of such impact that is admission/rejection is of no consequence
o Any positive effect of the good character evidence would be undone by the accused’s own testimony
Ratio: Reputation evidence for an accused person can derive from reputation in any community.
R. v. Profit (OCA 1992; SCC 1993)
Facts: P is a school principal. He was convicted of 2 counts of indecent assault on a student, and acquitted of 4-5
other counts of assault and sexual interference with students at trial. At trial, 22 witnesses testified to P’s
impeccable moral character. P appeals his convictions on the ground that the TJ failed to consider the dual
significance of the accused’s evidence of good character (its usefulness for P’s credibility and its usefulness to
undermine the likelihood that P committed the offences alleged).
Issue: Did the TJ fail to properly consider the accused’s character evidence as relevant to whether or not he
committed the alleged offence?
Holding: OCA - Yes, with dissent. Overturned on appeal to SCC – No.
Reasoning:
Majority at OCA (Goodman JA): n.b. this is not good law!
 The character witnesses were credible and testified to that P was honest, had integrity and morality
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
The law is settled that character evidence is admissible on a two-fold basis: [this part is good law]
o In support of the accused’s credibility
o As the basis of an inference that he is unlikely to have committed the crime
 It is a matter of considerable doubt as to whether the TJ considered the character evidence in the second light
 Even though the crimes alleged are sexual offences against children, the character evidence has the same
degree of relevance and weight to establish the improbability that the accused committed the offence
o TJ’s reasons do not show that he considered this factor in making his decision
o A new trial is required to correct this error
Dissent at OCA (Griffiths JA):
 Good character evidence is testimony of the witness’ knowledge of the accused’s reputation in the
community; character evidence is not admissible when it consists of the witness’s own opinions of the
accused’s character, or certain conduct of the accused showing good character
 While reputation evidence may be relevant in cases of financial/commercial dishonesty, it has little probative
value in cases involving sexual misconduct against children by persons in positions of trust/control
o Sexual assaults are generally shrouded in secrecy; flaw of offender’s character often doesn’t come to
light until he/she is charged
o Character evidence should therefore be given little weight when considering the propensity of
persons in positions of trust or control to abuse
 TJ simply believed the complainant over P; did not find P credible
Majority at SCC (Sopinka J.):
 Agreement with Griffiths JA. As a matter of common sense, a TJ may take into account that sexual assaults
involving children occur in private, and in most cases will not be reflected in the accused’s community
reputation for morality
Ratio: In cases of sexual misconduct involving children, or people abused by those in positions of trust/control,
good reputation evidence will be of little value to show the accused’s lack of propensity to have committed the
crime alleged.
2. Specific Acts


The Crown may not lead evidence of specific past bad acts of the accused; the accused may not call
witnesses to testify to their specific past good acts.
But if the accused testifies to specific instances of his own good conduct, can the Crown reply in kind? See
the following case:
R. v. McNamara et al. (No. 1) (OCA 1981) [Reprise]
Facts: M et al. are charged with offences of conspiracy to defraud in the context of construction bid-rigging. In
chief, one of the accused, Simard, stated that “businesses should be run legally” and listed all sorts of situations
in which he exhibited honest business practices. The Crown had evidence that S had been previously convicted
of tax evasion, and the TJ allowed cross-examination of S on that fact.
Issue: Did the TJ err in ruling that the Crown could cross-examine S on his prior bad acts? Holding: No.
Reasoning (The Court):
 R. v. Rowton: evidence of good character can only be given by evidence of reputation, and could only
be rebutted by evidence of reputation (not by specific acts of bad conduct).
o This rule was established at a time that the accused was not competent to testify
 It remains true that when the accused calls character witnesses, they are confined to giving evidence of
the accused’s general reputation
 But if the accused himself gives evidence, he is not confined by such a rule – can testify to their general
reputation, or their specific prior good acts
 The exceptions to the rule that the Crown can only rebut good character evidence led by the accused with
evidence of the general bad reputation of the accused are:
o Similar fact evidence
o The cross-examination of the accused on specific, relevant prior bad acts
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 This evidence is good to rebut the evidence of the accused’s good character
 It is also good to show that the accused lied in their examination-in-chief
 LIMITATION ON USE OF CROWN EVIDENCE: the Crown’s rebuttal evidence cannot be used to show
that the person was likely from his character to have committed the offence.
o The evidence has a bearing on the general credibility of the accused
Ratio: If the accused puts his character in issue by testifying to specific acts they have performed that show they
are a good person, the Crown can cross-examine the accused on prior bad acts to 1) rebut the accused’s character
evidence, and 2) show the accused lied on the stand.
Klein on McNamara, Reprise:
 Because the accused asserted that he was an honest businessman and gave all sorts of examples where he
was honest, the Crown can go beyond bringing reputation evidence  Crown can cross-examine the
accused on prior bad acts that go to the same character trait
o **This is the new thing that McNamara adds to the common law
 The jury will of course get a limiting instruction that the evidence of the accused’s past bad act can only be
used to neutralize the good character evidence he gave – it cannot go to infer guilt

Note also s. 12 of the CEA and s. 666 of the Criminal Code:
s. 12 CEA
s. 666
Cr.C.

Examination as to previous convictions
(1) A witness may be questioned as to whether the witness has been convicted of any offence, excluding any
offence designated as a contravention under the Contraventions Act, but including such an offence where the
conviction was entered after a trial on an indictment.
Where, at a trial, the accused adduces evidence of his good character, the prosecutor may, in answer thereto,
before a verdict is returned, adduce evidence of the previous conviction of the accused for any offences,
including any previous conviction by reason of which a greater punishment may be imposed.
s. 666 is more expansive than s. 12:
o s. 12 only allows the witness to be questioned on the fact of having been convicted – not the substance
of the convictions
o s. 666, since the accused has put their character in issue, allows questioning on the specifics underlying
the criminal convictions
3. Psychiatric Evidence of Disposition
R. v. Lupien (SCC 1970)
Facts: L is charged with “gross indecency” for performing sexual acts with another man. L’s defence is that he
thought his companion was a woman. L tried to adduce psychiatric evidence that he reacts violently to any
homosexual overtone, and so it is impossible that he committed the crime alleged.
Issue: Is the psychiatric evidence admissible? Holding: No, with dissent.
Reasoning:
Majority (Martland J.):
 The purpose of the evidence tendered is to establish that because L normally reacted violently to homosexual
practices, he must have been telling the truth when he said he thought his companion was a woman.
 The psychiatrist is therefore being asked to formulate an opinion not as to whether the respondent was
mentally capable of forming the alleged intent, but whether he did formulate such an intent in this case
o “This comes too close to the very thing the jury had to find on the whole of the evidence”
 The majority decides the evidence is inadmissible; restores the conviction.
Dissent 1 (Ritchie J):
 The psychiatrist’s opinion on whether or not L had homosexual tendencies is well adapted to the diagnosis
of a psychiatrist; it is relevant and admissible in this case
o Ritchie J makes this decision because he thinks homosexuals have characteristics which make them
more “readily identifiable as a class than ordinary criminals”
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Ratio: …?
Klein on Lupien:
 L’s argument is essentially that he’s clinically homophobic – he could not have formed the mens rea
necessary to perform an act of gross indecency with another man
 Majority rejects the expert evidence. Why?
o The expert’s evidence did not say that L did not have the capacity to form the mens rea
o It said that he did not have the mens rea at the time – this means that under the guise of science, the
expert decided what the jury is supposed to be deciding
o Majority might also suggest that homophobia is too mundane a quality to be a psychiatric disorder
 Dissent thinks information is helpful because it takes the view that homosexuality is a psychiatric disorder
 The legal principle in Lupien is still good, however: if the offence or offender is extraordinary in some
way, expert psychiatric evidence is useful for identifying the qualities of the groups in question
o This is when the expert evidence is helpful to the jury  when the offence/offender are outside their
“normal” experience in some way
R. v. Robertson (1975 OCA)
Facts: R is charged with murdering a 9-year-old girl. At trial, he tried to adduce psychiatric evidence showing
that he did not have any violent or aggressive tendencies.
Issue: Is this evidence admissible? Holding: No.
Reasoning (Martin JA):
 Evidence that the offence is distinctive (such that the perpetrator must also have unusual personality traits)
makes admissible evidence that the accused did not possess the personality characteristics of the class of
persons to which the perpetrator of such a crime would belong
 Where such evidence is called by the accused, the Crown is permitted to call psychiatric evidence to
rebut the evidence introduced by the defence
 However, in the case at bar, the murder of the victim was not so brutal as to only be the work of a
psychopath – and a disposition for violence is unfortunately not so uncommon as to constitute a
characteristic of an abnormal group
Ratio: When the crime alleged is such that only a distinctive type of perpetrator would commit it, expert
psychiatric evidence showing that the accused is not such a person is admissible.
R. v. Mohan (1994 OCA)
Facts: Mohan is a doctor; charged with sexually assaulting 4 of his young female patients. Defence wanted to
call an expert (psychiatrist) to testify that the perpetrator of such offences would exhibit particular personality
traits, which the accused did not share.
Issue: Is expert evidence admissible to show that the character traits of an accused person do not fit the
psychological profile of a perpetrator of such crimes as the ones charged? Holding: In these circumstances, no.
Reasoning (Sopinka J.):
 Necessary to consider here the limitations imposed by the rules relating to character evidence (above and
beyond those relating to expert opinion)
 General rule: character of the accused can only be evidenced by general reputation (unless accused testifies
to their own character  if so, can rely on specific acts of good conduct)
 Exception: when particular disposition/tendency in issue is characteristic of an abnormal group, the
characteristics of which fall within the expertise of a psychiatrist
 Three basic requirements need to be met before psychiatric evidence can be considered as potentially
admissible: 1. Relevant to an issue, 2. Of appreciable assistance to the trier of fact, 3. Evidence that
would otherwise be unavailable to the ordinary layman without specialized training
 Number of different scenarios exist:
1. Ordinary crime/ordinary person  expert evidence is irrelevant and inadmissible
2. Ordinary crime/extraordinary person  evidence is probative and admissible if the extraordinary
characteristic tends to show accused would not commit an ordinary crime
3. Extraordinary crime/ordinary person  evidence is admissible if it shows that the crime could likely
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only be committed by a person possessing specific characteristics that the accused does not have
(this is in dispute in the case at bar)
4. Extraordinary crime/extraordinary person  same as case #3, provided that the difference in the
abnormalities tends to exclude the accused from the probable group of perpetrators
 N.B. the word “abnormal” is not a good one to use  Sopinka J. prefers “distinctive”
 Categorization of crimes into “ordinary” and “extraordinary” and of people into “distinctive” and “not
distinctive” is the responsibility of the judge, not the expert  governed by common sense and experience
 In the case at bar, the evidence is inadmissible; the crimes are not extraordinary and neither is the accused.
Conviction upheld.
Ratio: Expert opinion evidence is admissible where it is a) relevant, b) necessary, c) not excluded by any rule of
law, and d) delivered by a qualified expert. It will only be allowed in terms of character evidence where there is
an element of the crime or the person which is outside of the lay jury’s experience to evaluate.
Klein on Mohan:
 Expert evidence is helpful to the trier of fact when it’s unavailable to them with their ordinary experience –
so numbers 2 and 3 of the requirements for admission of expert evidence are two sides of the same coin
 The way we decide if psychiatric evidence will give appreciable assistance to the trier of fact is through the
ordinary/extraordinary grid
o If the offence or the characteristics of the accused are ordinary, then anyone can assess it
 The science must be reliable as well; has to be reasonably developed  in this case, the court rejected the
expert’s science. Didn’t think she had developed a standard profile for a sexual offender
C. METHODS OF PROVING THE CHARACTER OF THIRD PARTIES I: OTHER SUSPECTS

In the case of third parties, the court is not worried about the jury making the prohibited inference (i.e. that a
bad person is more likely to be guilty of the crime charged)
o So if the character evidence is relevant, it’s probably admissible
Note that this case is pre-Mohan:
R. v. McMillan (1975 OCA)
Facts: Mr. M is charged with killing his infant daughter. At trial, Mr. M brought psychiatric evidence that Mrs.
M, also in the house at the time of the baby’s death, was a psychopath. The trial judge ruled that the Crown was
not permitted to cross-examine the psychiatrist on Mr. M’s mental makeup.
Issues: 1. Was the evidence of Mrs. M’s psychopathy admissible? 2. If so, did the trial judge err in not
permitting the Crown to cross-examine the psychiatrist on Mr. M’s psychological makeup too, or call rebuttal
psychiatric evidence? Holding: 1. Yes 2. Yes.
Reasoning (Martin JA):
 It is self-evident that if A is charged with the murder of X, A is entitled to bring evidence to prove that B, not
A, murdered X. This evidence can be direct or circumstantial
o Evidence tendered to prove that the crime was committed by a third person, rather than the accused, has
to be relevant and have sufficient probative value to justify its reception
o Courts will therefore only receive such evidence if the third person is sufficiently connected by other
circumstances with the crime charged
 When law of evidence excludes character evidence, it does so not because the evidence is irrelevant,
but on policy grounds (prejudicial effect, inefficiency)
o These policy grounds disappear when character in question is that of a third person (not the accused)
o So evidence of the disposition of a third person to commit the crime in question is admissible, if
relevant, to prove that the crime was committed by the third person
 The character evidence about the third person is relevant when the third person is connected with the
crime under consideration by other circumstances (only then does it have enough probative value)
 In this case, there are other circumstances: Mrs. M had an opportunity to hurt the baby, had made statements
after saying she had never wanted it, anyway
o Her disposition is therefore relevant to establish that it was more probable that she hurt the baby than
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her husband
How can Mrs. M’s disposition be proved? General reputation, and psychiatric evidence if her
condition is such that it only falls in the expertise of a psychiatrist (ex. psychopathy)
 Psychiatric evidence with respect to the personality traits of an accused, or another, is admissible when:
o The evidence is relevant to some issue in the case
o The evidence is not excluded by some policy rule
o The evidence falls within the proper sphere of expert evidence
 Where the crime is ordinary, and the accused wishes to bring psychiatric evidence showing they don’t have
some ordinary trait (dishonesty, violence), the evidence is NOT admissible  amounts to an attempt to
introduce evidence of the accused’s good character, through a psychiatrist
 The evidence on Mrs. M was admissible; but Crown could also cross-examine the defence psychiatrist on
their diagnosis of the accused, and bring their own psychiatric evidence.
Ratio: The defence can bring evidence of a third party’s character (psychiatric evidence, if necessary) to show
that they were likely to have committed the offence when that third party is otherwise sufficiently connected to
the case for the disposition evidence to have probative value.
Klein on McMillan:
 In order to be admissible, the third-party character evidence needs to be sufficiently connected to the case
o In this case, it was Mrs. M’s motive and opportunity that made it sufficiently connected
 Because the character evidence at issue in this case is also psychiatric evidence, today it would ALSO have
to pass the Mohan test
 Another main question in this case is: once Mr. M introduced the bad character evidence incriminating his
wife, should the Crown be able to cross-examine him on his own character?
o The problem is that Mr. M hasn’t directly put his own character in issue
o The court holds that Mr. M implicitly put his own character in issue: by saying that Mrs. M is the type
to commit the crime, is impliedly saying that he is NOT the type to commit the crime
o Accused persons that defend themselves by pointing the finger at someone else by suggesting that
they have the propensity to commit the crime are taken to have put their own character in issue

D. METHODS OF PROVING THE CHARACTER OF THIRD PARTIES II: VICTIMS
R. v. Scopelliti (1981 OCA)
Facts: S killed Sutton and McRae. His defence was self-defence. He said that the deceased came into his
convenience store acting aggressively and threatening him. He sought to lead evidence that the deceased were
violent people, through a series of specific acts they had committed (unknown to S at the time he shot them).
Issue: Is the evidence of the other violent acts of the deceased victims, unbeknownst to the accused at the time of
the offence charged, admissible? Holding: Yes, if tendered to prove the likelihood that they were the aggressors,
and not the reasonableness of the accused’s apprehensions for his safety.
Reasoning (Martin JA):
 Where self-defence is raised, evidence of previous assaults by the deceased (to third persons) which are
known to the accused are admissible to show the accused’s reasonable apprehension of violence from the
deceased
o Evidence of deceased’s reputation for violence (known to accused) is admissible on same principle
 Evidence of previous violence by the deceased (to show deceased’s disposition to violence), NOT known to
the accused, is admissible to show the probability of the deceased having been the aggressor and to
support the accused’s evidence that he was attacked by deceased and acted in self-defence
o It’s admissible if there is other evidence of the deceased’s aggression on the occasion in question
(this evidence may come from the accused, however)
 The disposition of a third person (if relevant and otherwise admissible) may be proved by: reputation
evidence, proof of specific acts, psychiatric evidence of disposition if the disposition in question falls
within the proper sphere of expert evidence
 Here, the evidence of the other acts of violence of the deceased make it more likely they were being violent
to the accused on the occasion in question
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Ratio: Where they are arguing self-defence, the accused may raise the prior violent acts of the victim (that the
accused did not know about) to show that it was more likely that the victim was the aggressor on the occasion in
question if there was evidence of some aggression by the victim on the occasion in question.
Klein on Scopelliti:
 S doesn’t put his character in issue by bringing evidence of the victims’ violent tendencies
o The evidence doesn’t show or imply that S is not the type to shoot the victims
 The Crown probably objected to this evidence on the basis that its prejudicial effect outweighed its probative
value (i.e. the victims were bad people so deserved to be shot by S), but the court does not agree
Summary: The Accused can Adduce Bad Character Evidence about Third Parties When,
 1. The evidence of the bad character of a third party (either another suspect, or the victim) is sufficiently
connected to an issue in the case
 2. Accused persons can introduce character evidence about third-party suspects in three ways:
o General Reputation
o Specific Acts (Scopelliti)
o Expert testimony meeting the Mohan criteria (McMillan)
E. THE ACCUSED’S PRIOR BAD ACTS: THE PROBLEM OF “SIMILAR FACTS”

Note that similar fact evidence is evidence of the accused’s specific bad acts done in the past, specifically
led by the Crown
o This evidence is therefore dynamite: unlike other evidence relating to the character of the accused, the
Crown can lead it without the accused putting their character in issue in any way (much less with
specific acts)
The Old Approach to Similar Fact Evidence
Makin v. Attorney-General for New South Wales (1894 Privy Council, England)
Facts: The Makins are accused of murdering a baby. The police dug up the graves of eight other babies in their
last three homes (gaaah…). The Crown wants to introduce this evidence to prove that the death of the baby in
this case is not an accident.
Issue: Can the evidence of the other babies’ graves be admitted? Holding: Hell yes.
Reasoning (Lord Herschell):
 The prosecution cannot tender evidence of the accused’s other criminal acts (not covered by the current
charge), if it’s for the purpose of leading the trier of fact to conclude that the accused is likely to have
committed the offence with which he’s charged because of his past criminal conduct
 But evidence of prior criminal acts can be relevant in order to show whether the current crime charged
was a mistake/accidental, or done on purpose (or to otherwise rebut a defence)
Ratio: Evidence of the accused’s prior criminal conduct is admissible under certain circumstances. It is not
admissible to show that the accused, because of their prior criminal activity, is more likely to be guilty of the
offence currently charged. It is admissible to rebut a defence put forward by the accused, such as accident.
Klein on Makin:
 This evidence is very extreme. Why? Because the acts are so similar – cannot be a coincidence. This
evidence establishes a pattern, an MO on the part of the accused.
 What this evidence is admitted to show is that the death of the two babies in question (who the Makins are
charged with murdering) were not accidents, as the Makins claim
 The evidence is not tendered to show the Makins are bad people, or their propensity to neglect babies to the
point of death  it is offered to show their intent, a constituent element of the offence
 This is an issue in the trial to which this evidence is relevant
 This case stands for the proposition that if similar fact evidence is tendered to prove a constituent element of
the offence (or really any other fact than propensity), it’s admissible
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R. v. Smith (1915, England)
Facts: S is charged with murdering his first wife. She was found dead in her bath. The prosecution wants to
tender evidence that two of S’s subsequent wives were found dead in their baths as well. S stood to benefit
financially from all three of their deaths. S’s defence is that his first wife drowned accidentally.
Issue: Is the evidence admissible? Holding: Yes.
Reasoning (Reading LCJ):
 If there is prima facie evidence that S committed the act charged, evidence of similar acts is admissible
o Only for the purpose of disproving the defence theory that the first death was accidental
 The jury was properly instructed as to how to use this evidence: they should not be trying to decide whether
the S committed the two subsequent murders, but only whether S was guilty of the first one.
Ratio: There needs to be some prima facie evidence, apart from the similar fact evidence, that the accused
committed the crime charged before the similar fact evidence becomes admissible.
Klein on Smith:
 This evidence is admissible because it goes to rebut the defence of accident – it’s highly doubtful the same
accident happened three times
R. v. Straffen (1952, England)
Facts: S escaped from an institution. In the time that he was at large, a little girl was manually strangled to death
(no sexual interference, body left in a readily discoverable place). The prosecution wants to adduce evidence that
S previously killed two young girls of the same age, also via manual strangulation, without sexual interference,
whose bodies were left in easily discoverable places (but he was not fit to stand trial at that time). They wish to
adduce it for the purposes of identification.
Issue: Is the evidence admissible? Holding: Yes.
Reasoning (Slade J):
 Evidence of the commission of criminal offences not covered by the indictment will not be admitted for
the purpose of showing that the accused has a criminal disposition, or the propensity to commit crimes like
the one charged. But there are some exceptions:
o It can be admitted to prove, not that the accused has a criminal propensity, but that the accused is
the person who committed the particular offence charged (i.e. identity)
 The other criminal acts of the accused can negative the inference of accident, or can establish mens
rea by showing system, or can sometimes prove identity
 The similarities between the deaths here are unmistakable; the evidence is not admitted to show, put bluntly,
that S likes to strangle young girls, but to show that he is the person who strangled this one (ie to identify the
murderer).
Ratio: If the similar fact evidence in issue is evidence of a pattern that will identify the accused as the person
who committed the crime charged, it is admissible.
Klein on Straffen:
 This evidence is admissible because it goes to the identity of the murderer
 The evidence doesn’t show the propensity of S to kill young girls; it goes to show that the same person who
killed the two earlier victims (S) also killed this one

Under the old model, the purpose for which the evidence of prior bad acts is tendered determines whether
it’s admissible or not
o Similar fact evidence is NOT permitted to be used to show:
 The bad character of the accused
 Their propensity to commit the crime charged
o Similar fact evidence CAN be admitted to show:
 Intent, a system, a plan, malice
 To rebut a defence of mistake or accident
 Identity  if the similar fact evidence demonstrates a pattern that could not be a coincidence (an
MO, a calling card), it is like a fingerprint found at the scene
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The courts in Canada have moved on from this categorical approach to a more principled approach
The New Approach to Similar Fact Evidence


The SCC’s approach to similar fact evidence is principled, rather than categorical now: if the probative
value of the evidence of an accused’s prior misconduct outweighs its inevitable prejudicial effects, it’s
admissible
The history of similar fact evidence law until this point:
o First Phase: Makin  if the SFE goes to something other than propensity, it’s admissible
o Second Phase: Smith/Straffen  categories. If SFE is tendered for a proper purpose (identity, rebut
defence), it’s admissible
o Third Phase: Arp/Handy  principled approach to SFE.
This case introduced the principled approach to similar fact evidence:
R. v. Arp (1998 SCC)
Facts: A was charged with two counts of first degree murder arising from two incidents four years apart; some
circumstantial evidence linked A to the first murder, and DNA evidence to the second. Both victims were found
outdoors in the snow.
Issue: Was the evidence on each charge admissible as similar fact evidence going to identity on the other
charge? Holding: Yes.
Reasoning (Cory J):
 It’s difficult to say that evidence of prior bad acts is not relevant to the ultimate issue of guilt – the fact
that a person has acted one way in the past tends to support the inference that they have acted that way again
o Evidence of prior bad acts is usually inadmissible because its slight probative value is outweighed by
its prejudicial effects
o What is prohibited is not the information – it’s the chain of reasoning: cannot invite the jury to find an
accused guilty because of past immoral conduct
 Sometimes, however, similar fact evidence is admissible  when its probative value outweighs its
prejudicial effects
 Where the similar fact evidence is brought to establish identity (as in this case), the jury is not asked to infer
that the accused is a certain type of person who would commit the acts charged, but that the accused IS the
person who committed the acts charged
o The inference is only possible when the degree of similarity between the act renders the likelihood
of coincidence objectively improbable
 Because similar fact evidence is admitted on the basis of an objective improbability of coincidence, the
evidence derives its probative value from the degree of similarity between the acts under consideration
Ratio: This case was part of the move away from the categorical approach to similar fact evidence towards a
principled approach.
Klein on Arp:
 The court says that a “striking similarity” between the accused’s previous bad acts and the current acts
charged is not necessary  rigid adherence to this idea might be counterproductive
 So this case instead says we should look at whether the similarity between the acts is likely to be the product
of coincidence.
 This is no longer the categorical approach. You do not have to show the evidence falls into one of the
accepted categories, but DO have to show that PV > PE.
 So this case is both wider and narrower on the admissibility of SFE.
This case sets out the new test for SFE:
R. v. Handy (2002 SCC)
Facts: H is charged with sexual assault causing bodily harm. The complainant and H, acquaintances, ran into
each other in a bar and went to a motel to have sex. The complainant alleges that what started out as consensual
vaginal intercourse quickly turned into non-consensual vaginal and anal intercourse, accompanied by violence.
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H’s defence is that she consented and there was no violence. The Crown tried to lead as similar fact evidence
H’s ex-wife’s testimony concerning several incidents of H’s inflicting on her violent, non-consensual sex. Their
point was that H enjoyed painful, non-consensual sex. This case is complicated by the fact that H’s ex-wife and
the complainant spoke not long before the complainant’s alleged sexual assault by H, and H’s ex-wife told the
complainant that she could get compensation from the government if she were to make a claim that she was
assaulted by H (as H’s ex-wife had). Note that during H’s marriage to his ex-wife, he was imprisoned for three
years for sexual assault on two other women, but this evidence was excluded by agreement of counsel.
Issue: Is the ex-wife’s evidence admissible? Holding: No.
Reasoning (Binnie J):
 The rule: evidence of the prior bad acts of the accused are presumptively inadmissible
o Why? Potential for prejudice, distraction, time consumption
 Exception to this rule: evidence of the accused’s prior bad acts that are so similar to the one charged
that it would be an affront to common sense to suggest that the similarities were a coincidence  this
evidence is admissible
The Test for the Admissibility of Similar Fact Evidence
 Similar fact evidence is presumptively inadmissible: onus on Crown to show, on a balance of probabilities,
that the probative value of the similar fact evidence tendered outweighs its potential prejudicial effects
 1. Evaluate the Probative Value of the Similar Fact Evidence Offered
o A. Identify the Issue in Question
 The issue which the SFE is tendered to help prove is material because probative value cannot be
assessed in the abstract – need to know WHY the evidence is being brought to know how good it is
 The issue in question is NOT allowed to be the general character of the accused or the credibility
of the victim
 This issue must be a live issue in the case (ex. identity, actus reus, motive, etc)
o B. Identify the Required Degree of Similarity
 Ex. On the issue of identity, the similarity of the acts needs to be extremely striking
 Ex. On the issue of motive, the similarity between the acts is pretty much immaterial
o C. See Whether the Evidence is Appropriately Connected to the Facts Alleged in the Charge
 Proximity in time of the similar acts
 Lapse of time opens up a greater possibility of character reform, and tends to undermine the
premise of continuity of character
 Extent to which the other acts are similar in detail to the charged conduct
 Substantial dissimilarities may dilute probative strength of the evidence, and may compound
confusion/distraction (therefore increasing prejudice)
 Number of prior occurrences
 An alleged pattern of conduct gains in strength in the number of instances that compose it
 Circumstances surrounding the acts
 Think of the broader context of the prior acts in comparison with the context of the present act
 Distinctive features unifying the incidents
 Intervening events
 Strength of the evidence that the similar acts actually occurred
 Normally, frailties in evidence are left to the trier of fact, but here admissibility is bound up
with probative value, so the TJ needs to take it into consideration
 2. Evaluate the Prejudicial Effect of the Similar Fact Evidence Offered
o A. Moral prejudice: the risk that the evidence makes the accused look like a “bad person”, and therefore
the jury convicts on that basis
o B. Reasoning prejudice: the likelihood that the jury will think that because the accused did it before,
he’s done it again, be distracted or confused by this extra evidence
 3. Weigh Probative Value versus Prejudicial Effect
o The problem with this step of the test is that the two are apples and oranges: the probative value of the
evidence goes to proof of an issue, while prejudicial effect goes to the fairness of the trial
o Similar fact evidence should be admitted when its PV is sufficiently great to make it “just” to admit the
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evidence (justice includes society’s interest in getting at the truth of the charges, as well as the interest
of society and the accused in a fair trial)
 The issue of collusion: collusion destroys the basis on which similar fact evidence is admitted (the
improbability of coincidence)
o So the TJ needs to assess whether the Crown has shown, on a balance of probabilities, that the evidence
of similar facts is not tainted with collusion (before the evidence is given to the jury)
Ratio: This case sets out the test for when similar fact evidence is admissible (i.e. when probative value
outweighs prejudicial effect, and what to consider in order to make this determination).
Klein on Handy:
 The inference that the Crown is asking the trier of fact to make is: the accused did not habitually take no for
an answer, so he likely did not take no for an answer this time
o The court admits that this is propensity evidence
o But also decides that the way the accused behaved with his wife is not a good predictor of the way he
would act with the complainant
 Basically, the degree of similarity was not high enough to pass the test; the previous sexual
encounters were conducted in different circumstances than those alleged in the case
 The test laid out in Handy requires the judge to: 1) Identify the purpose for which the evidence is tendered,
2) Evaluate the probative value of the evidence, looking at the degree of similarity needed, and the degree of
similarity present, and 3) Evaluate prejudice
o The test is supposed to evaluate when two facts are unlikely to be the product of coincidence
o Note that any evidence suggesting that two facts were purposely made to look the same destroys the
admissibility of the SFE (like collusion)
 Klein’s Reformulation of the Handy Test for Admissibility of Similar Fact Evidence:
o 1. Probative Value
 a) Strength of the evidence that the similar facts occurred  the more compelling it is, the more
probative value it has
 b) Extent to which the proposed evidence supports the desired inferences  the connectedness
between the similar facts and the present facts
o 2. Prejudicial Effect
 Moral prejudice (the person is a bad person, so deserves to be convicted)
 Reasoning prejudice (the person did something like this before, so probably did it again)

Note that the judge has to give a mandatory direction when SFE is admitted
o 1) The jury is not permitted to reason from a bad disposition to guilt
o 2) How the evidence can be used
 The evidence was tendered for a purpose – can only be used for that purpose
 Explanation of the dangers of SFE generally so that jurors know what can go wrong in their minds
IV. CREDIBILITY
A. INTRODUCTION TO CREDIBILITY

A distinction to keep in mind about credibility:
o 1. Is the witness telling the truth? (at stake in the trial)
o 2. Is the witness a truthful person? (relevant but collateral issue at trial)
Demeanour Evidence

White v. The King (1947 SCC): things to consider in assessing the credibility of a witness are his/her general
intelligence, integrity, powers to observe, capacity to remember, accuracy in statement, whether they are
honestly endeavouring to tell the truth, whether they are sincere/frank or evasive/reticent
o These can all be observed through the witness’s general conduct and demeanour
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R. v. K(GB) (1993 SCC): it is important to see statements given in court because then the trier of fact can
observe the witness’s reaction to questions, their hesitation, degree of commitment to the response
Demeanour evidence can sometimes be unreliable, due to cultural differences
Deference of Appellate Courts to Findings of Credibility at Trial


R. v. Buhay (2003 SCC): the reasons for deferring to the trial judge’s assessments of credibility are that they
have the opportunity to hear the witnesses directly, observe their demeanour, hear the tone of their
responses, none of which is evident from a written trial transcript
R. v. W(R) (1992 SCC): an appellate court can overturn a verdict based on findings of credibility when it
concludes, after considering all the evidence and giving due regard to TJ’s advantages, that the verdict is
unreasonable
B. SUPPORTING CREDIBILITY: THE RULE AGAINST OATH-HELPING AND ITS EXCEPTIONS


Counsel often tries to “accredit” the witness they are examining as worthy of belief (with preliminary q’s)
Generally, however, counsel is not permitted to lead other evidence (other witnesses) that only shows
that a witness is worthy of belief, or is a truthful person (“oath-helping”)
o Why? Time-consuming, may encourage the jury to abdicate their responsibility for assessing credibility
The Four Exceptions to the Rule Against Oath-Helping:
1. Defence may lead evidence of accused’s reputation for truthfulness in support of credibility
(Rowton, Levasseur, Profit)
2. Expert evidence: experts may testify to information that is necessary to evaluating the credibility of
a witness (which is outside the ordinary experience of the trier of fact)
a. But the expert cannot testify that the witness is likely telling the truth in this case
(Marquard)
b. This generally connotes a witness that is unusual in some way
3. Prior consistent statements may not be used to bolster credibility, but can be adduced for
a. Identification of the accused at trial
b. To rebut an express or implied allegation of recent fabrication (Giraldi, Stirling)
c. Where it forms “Part of the Narrative” (Dinardo)
4. Where opposing counsel has attacked the credibility of a witness (for which there is a broad right),
counsel may rehabilitate with reputation evidence, experts, cross-examine the witness, but cannot
call witnesses
Only the exceptions for expert evidence and prior consistent statements will be examined in this section.
1. Expert Evidence on Credibility


The trier of fact may require expert assistance to understand the significance of the behaviour of a witness to
whom common standards of credibility may not apply
Expert cannot express an opinion on the credibility of the particular witness, but can explain the phenomena
the trier of fact should take into account when making the assessment
Note that the holding of this case is overruled in Marquard:
R. v. Kyselka et al. (1962 OCA)
Facts: K et al. were charged with raping a 16-year-old girl with a mental disability. The only issue is whether the
complainant consented. She testified she did not. The Crown tendered a psychiatrist’s evidence on complainant’s
mental capacity; the psychiatrist gave his opinion that people like the complainant are not capable of lying.
Issue: Is the expert evidence admissible? Holding: No.
Reasoning (Porter CJO):
 The purpose of such evidence was to suggest that the witness was likely to be a truthful person because of
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her mental classification. Its only function was to bolster the credibility of the witness. It was not directly
relevant to an issue in the crime charged, but only to the weight to be attached to the witness’s evidence (this
is overruled in Marquard).
 “If this sort of evidence were admissible … no limit could be placed on the number of witnesses who could
be called to testify about the credibility of witnesses as to facts. It would tend to produce … undue confusion
in the minds of the jury by directing their attention away from the real issues…”
Ratio: Expert evidence is not admissible if its only function is to directly bolster the credibility of the witness by
stating that these “types of people” are truthful.
Klein on Kyselka:
 A party cannot lead evidence whose sole relevance is to support the credibility of his/her evidence
o Marquard will overrule this in the context of special witnesses whose credibility is outside the normal
experience of juries
 Use this case for general rule against oath-helping and its rationale: time-consuming, distracting to the jury
R. v. Marquard (1993 SCC)
Facts: M is charged with pressing her granddaughter’s face against a burning hot stove in order to discipline her.
M’s story is that her granddaughter burned herself with a butane lighter. When they arrived at the hospital, the
victim said she burnt herself with a lighter, but later changed her story and said “nanny put me on the stove”
(eaaarrgh). She said the same thing at trial. The Crown adduced the evidence of a paediatrician at the hospital
who said that children often lie about abuse at first, fearful of what may occur if they don’t; the doctor also
expressed that she thought the victim in this case was telling the truth when she claimed abuse.
Issue: Is the doctor’s evidence admissible? Holding: Yes, but a new trial is ordered (with dissent).
Reasoning (McLachlin J):
 “It is a fundamental axiom of our trial process that the ultimate conclusion as to the credibility or
truthfulness of a particular witness is for the trier of fact, and is not the proper subject of expert
opinion”
 Credibility is a matter within the competence of laypeople; ordinary people draw conclusions about whether
someone is lying or telling the truth on a daily basis
 We do not want to shift responsibility for making a decision about a witness’s credibility from the jury to the
expert – it is a difficult issue, jury could unduly defer to the expert
 But there may be features of a witness’s evidence which go beyond the ability of a layperson to understand
o This may justify expert evidence
o This is particularly the case with children’s evidence
 Expert evidence on human conduct and the psychological and physical factors which may lead to
certain behaviour relevant to credibility, is admissible, provided the testimony goes beyond the
ordinary experience of the trier of fact
o Serves to put the testimony of the witness in its proper context
o Relevance of the expert’s testimony is to assist the jury in determining whether there is an explanation
for what might otherwise be regarded as conduct that is inconsistent with that of a truthful witness
 In this case, the doctor’s evidence on what abused children tend to do is relevant and admissible; her opinion
about whether this victim was truthful or not is not admissible. New trial ordered.
Ratio: An expert’s evidence on the credibility of a witness is admissible if it can inform the trier of fact about
particular behaviours or propensities relevant to the credibility of a particular class of witnesses, and is outside
the trier of fact’s ordinary experience.
Klein on Marquard:
 Expert evidence is admissible to talk about how children generally behave in the context of child abuse, as
long as this evidence goes beyond the ordinary experience of the trier of fact
 In the majority’s view, the doctor went too far and stated her opinion that the kid was telling the truth in her
testimony (dissent really only disagrees on the application of the test)
2. Prior Consistent Statements
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A witness’s prior consistent statement is generally not admissible to enhance that witness’s credibility
o Three reasons:
 The mere fact that a witness has previously given a statement consistent with her testimony is not
probative of the truth: witness could be a consistent liar
 Probative value is minimal, doesn’t justify the time required
 It’s hearsay
 Prior consistent statements are also easily fabricated
There are three exceptions to the rule against the admissibility of prior consistent statements: *note these
mostly aren’t to bolster credibility, but more to rehabilitate it when it’s been attacked
o A. Support the witness’s identification of the accused at trial (correctly identified them before)
o B. To rebut the suggestion that a witness has recently fabricated a story (alibi, the charges)
 Admissible to show that the witness has consistently maintained the position for some time
o C. Where it is part of the witness’s “narrative” and significant to understanding their version of events
“Recent Fabrication”

Where it has been suggested that a witness made their story up for a particular reason, it’s acceptable to
bring a prior consistent statement made by the witness to show they have been telling the same story since
before the motive to lie cropped up
R. v. Giraldi (1975 BCCA)
Facts: G tried to admit evidence that the story he told the court on the stand is the same one he told the police.
He tried to do so before he was cross-examined by the Crown, so before they had explicitly suggested he was
lying to the court.
Issue: Is the prior consistent statement admissible? Holding: Yes.
Reasoning (McFarlane JA):
 Exception to general rule against the admissibility of prior consistent statements: a prior consistent statement
is admissible in order to rebut a contention that the evidence placed before the jury was recently fabricated.
 The suggestion of recent fabrication need not be made expressly, but may arise implicitly
 In this case, it arose implicitly in the trial and G’s prior consistent statement is admissible.
Ratio: A prior consistent statement is admissible if it is adduced to rebut an implicit or explicit suggestion that
the witness’s story was recently fabricated.
R. v. Stirling (2008 SCC)
Facts: S was charged with 2 counts of criminal negligence causing death and 1 causing bodily harm, in relation
to a bad car accident. The issue at trial was whether S or another person in the car, Harding, was driving. They
were the only two survivors of the accident. The TJ decided that S was driving, in part on the basis of H’s
testimony that stated S was driving. During cross-ex of H, counsel for S questioned H about the civil suit he had
launched against S, as well as some drug charges against H that had been dropped. The implication was that H
had reason to lie about who was driving. Crown introduced H’s prior consistent statements, made after the
accident (and before the civil suit/drop of the crim charges), to rebut this suggestion of fabrication. S appealed on
the basis that the TJ erred in his use of these prior consistent statements; S argues that the TJ used them not only
to rehabilitate H’s credibility, but also for the truth of their contents (i.e. as evidence proving that S was driving).
Issue: Did the trial judge err in his use of the properly admitted prior consistent statements? Holding: No.
Reasoning (Bastarache J):
 Prior consistent statements are generally inadmissible. Are viewed as lacking probative value and being selfserving to the party that tries to introduce them.
 Exception to this general exclusionary rule: prior consistent statements can be admitted where it has been
suggested that a witness has recently fabricated portions of his or her evidence
o Allegation of fabrication doesn’t have to be explicit: it is sufficient if the circumstances of the case
reveal that the apparent position of the opposing party is that there has been a prior contrivance
o Fabrication also doesn’t have to be particularly “recent”: prior consistent statements are useful when
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they illustrate that the witness’s story was the same before the motive to lie arose
The prior consistent statements (made before the launch of the civil suit/dropped crim charges) were
appropriately admitted in this case, to rebut the suggestion that H’s evidence was motivated by these factors
 But these statements lack any probative value beyond showing that the witness’s story didn’t change
as a result of a new motive to fabricate
o It’s impermissible to assume that because a witness has made the same statement in the past that he/she
is more likely to be telling the truth.
 The reasons of the TJ make clear that he was aware of the limited value of H’s prior statements and did not
use them for an improper purpose
 The effect of prior consistent statements on credibility cannot be artificially limited to simply removing the
effect of the suggestion that the evidence of the witness was fabricated
o It is permissible to take this factor into account as part of the larger assessment of credibility
o Credibility as a whole is necessarily impacted in a positive way
Ratio: Prior consistent statements (made before any motive to lie arose) are admissible to rebut a suggestion that
the witness has a reason to lie; these will rehabilitate the credibility of the accused.
Klein on Stirling:
 Prior consistent statements are not supposed to bolster general credibility – are just supposed to rectify it
 Me: this judgment recognizes the artificiality of that limitation

“Narrative”
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
Prior consistent statements of a witness are admissible where they form part of the witness’s narrative
o This exception is for the witness to be able to tell the story in a natural way
o The narrative exception usually arises in sexual assault cases, particularly with child witnesses – i.e.
allows the witness to say how they came to realize they had been assaulted
R. v. F(JE):
o Narrative provides background to a story; witness can recount their experience as a victim of the crime
alleged, so that the trier of fact will be in a position to understand what happened and how the matter
came to the attention of the authorities
o This evidence has limited value; it cannot be accepted for the truth of its contents (to show the crime
occurred), but can be accepted to give a background to the charges
R. v. Dinardo (2008 SCC)
Facts: D was charged with sexually assaulting/exploiting a person with a disability. Her testimony at trial had
serious flaws: she admitted that she has a tendency to lie and may have made up the allegations. However, her
statement was essentially consistent throughout the process. The TJ took into account her prior consistent
statements and said they provided “corroboration”.
Issue: Did the TJ misuse the prior consistent statement evidence? Holding: Yes, new trial ordered.
Reasoning (Charron J):
 The challenge with prior consistent statement evidence is to distinguish between using narrative
evidence for the impermissible purpose of confirming the truthfulness of the allegation and using it for
the permissible purpose of showing the fact and timing of the complaint, which may assist the trier of
fact in their assessment of the truthfulness/credibility of the complainant
o This is particularly so in cases of sexual assault against children
 Evidence of a prior complaint cannot be used as a form of self-corroboration to prove the incident in fact
occurred; it can be supportive, however, of the central allegation in the sense that it creates a logical
framework for its presentation
o Can help the jury understand the conduct of the complainant and assess her truthfulness
o Jury must be instructed that it cannot be used as proof that the crime was committed by the accused
Ratio: The proper purpose for which prior consistent statements can be used as narrative evidence is to present
to the trier of fact some background information on how events developed, and so assess the victim’s credibility.
Klein on Dinardo:
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The complainant’s prior consistent statement in this case was supposed to provide context for her claim
It was not supposed to bolster her credibility, or, going even further, provide corroboration for her testimony
C. IMPEACHING CREDIBILITY



Remember, credibility is extent to which a witness may be believed, the likelihood they are telling the truth
Every witness who takes the stand is taken to have put his or her credibility in issue, and counsel is free to
attack it in cross-examination, as well as with other witnesses
The things counsel is allowed to do in a trial to attack credibility are much broader than the things they’re
allowed to do to bolster credibility: counsel can
o Put contrary evidence to the witness
o Suggest the witness is biased, has a motive to fabricate, or is corrupt
o Show the witness’s evidence goes against human experience
o Demonstrate the witness’s bad reputation for veracity (Clarke)
o Cross-examine them on prior inconsistent statements
o Bring up their prior convictions (s. 12 CEA)
o Adduce expert evidence challenging the witness’s capacity to observe/recall/communicate (Toohey)
o **Note these methods are all subject to the rules governing the tendering of prior bad acts of the
accuased and the collateral facts bar
1. Witness’s Bad Reputation for Veracity
R. v. Clarke (1998 OCA)
Facts: C was dating the complainant. She broke it off. They got into some sort of altercation and C was charged.
Defence counsel tried to impeach the credibility of the complainant (who is obviously a Crown witness) by
calling reputation witnesses and asking them the three Gonzague questions.
Issue: Are the answers to these questions admissible?
Holding: Questions 1 & 2, most of the time. Question 3, rarely.
Reasoning (Rosenberg JA):
 R. v. Gonzague (1983): the defence is allowed to ask a witness called for the purpose of discrediting a Crown
witness the following 3 questions:
o 1. Do you know the reputation of the witness as to truth and veracity in the community in which the
witness resides? (If yes, proceed to question 2)
o 2. Is that reputation good or bad? (If bad, proceed to question 3)
o 3. From that reputation, would you believe the witness on oath?
 A judge can exclude relevant evidence because the PE of the evidence outweighs its PV
o Seaboyer: for defence evidence to be excluded, PE must substantially outweigh PV. Things to consider:
 1. The danger the evidence will arouse the jury’s emotions of prejudice, hostility, sympathy
 2. Danger that the proposed evidence will create a side issue that distracts the jury from the main
issue in the case
 3. Likelihood that the evidence will consume an undue amount of time
 4. The danger of unfair surprise to the opponent
 (Added by the judge in this case) 5. Danger that the evidence will be presented in such a form as to
usurp the function of the jury
 The trial judge has limited discretion to prevent counsel from asking the first two questions
 The prejudicial effect of the answer to the third question will almost always outweigh its probative value,
which is slight anyways. It usurps the function of the jury, who must evaluate credibility themselves and not
defer to someone who “knows the witness better”
 Where any of these questions are asked and answered, the jury should be instructed that:
o Witness is under oath, and the way they behave in court may be different from how they act otherwise
o Jurors should not automatically defer to the character witness’s view of the witness’s credibility
Ratio: Defence counsel is generally permitted to ask a witness called for the purpose of attacking the credibility
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of a Crown witness what the Crown witness’s reputation for truthfulness is.
2. Expert Evidence on the Witness’s Abnormal Unreliability
Toohey v. Metropolitan Police Commissioner (1965 House of Lords)
Facts: T is charged, along with two other men, of assaulting the victim Madden. The Crown theory is that the
three men beat up M in order to rob him, causing him to become hysterical. The defence theory is that Madden is
a hysterical person by nature, was drunk on the night in question, the three men approached him to help him
home, and he imagined the assault (?). The police doctor who examined Madden found no evidence of injury,
smelled alcohol on him, and found him to be hysterical.
Issue: 1. Is this evidence relevant? 2. Is this evidence admissible? Holding: 1. & 2. Yes.
Reasoning (Lord Pearce):
1. Relevance
 The issue here is whether the episode of assault created the hysteria, or the hysteria created the episode of
assault (in the victim’s mind)
 Medical evidence as to the hysterical/unstable nature of the victim is relevant on this issue
2. Admissibility
 Is it permissible to impeach M’s credibility as a witness with medical evidence of his hysterical nature?
 If a witness gave evidence on something he purportedly saw fifty yards away, evidence of an eyesight expert
would surely be admissible to show that the witness could not see past twenty yards
 Similarly, medical evidence of a mental illness which makes a witness incapable of giving reliable evidence
must also be admissible
o Me: medical evidence is more objective than psychiatric evidence. Legally blind is one thing; how do
you define “hysterical” to an abnormal degree objectively?
 Conclusion: medical evidence is admissible to show that a witness suffers from a disease/defect/
abnormality of mind that affects the reliability of his evidence
o This evidence is not confined to a general opinion of the unreliability of the witness, but can also
discuss the reasons for the diagnosis, and the expert’s opinion on the extent to which the
credibility of the witness is affected
Ratio: Expert evidence is admissible to show that a witness has a mental illness that makes their evidence
unreliable; what is more, the expert can express an opinion on whether he or she thinks the witness is credible.
3. Prior Convictions
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
At common law, people with criminal records were incompetent to testify
CEA modifies this, but adds s. 12 so that witnesses with criminal records can be cross-examined on that fact
s. 12 CEA


Examination as to previous convictions
12. (1) A witness may be questioned as to whether the witness has been convicted of any offence,
excluding any offence designated as a contravention under the Contraventions Act, but including such an
offence where the conviction was entered after a trial on an indictment.
Proof of previous convictions
(1.1) If the witness either denies the fact or refuses to answer, the opposite party may prove the conviction.
[… methods of proving criminal record …]
This statutory provision admits a witness’s prior convictions into evidence for the purpose of undermining
his or her credibility
o The theory is that a person who has committed a criminal offence is less likely to be a truthful
person that someone who has not
This section is applicable to the accused if the accused chooses to testify:
o In cross-examining accused on his criminal record, Crown can ask for: name of the crime, the substance
and effect of the indictment, the place of conviction and the penalty, but not the details of the offences
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Remember, this is an exception to the general rule that the accused cannot be cross-examined with
respect to prior misconduct
The danger with allowing in evidence of the accused’s (who testifies) criminal record is that the jury
will use it not only as a means of assessing the accused’s credibility as a witness, but also
(improperly) as a means of assessing his propensity to commit the offence
R. v. Corbett (1988 SCC)
Facts: C was charged with the first-degree murder of his associate in the cocaine trade. Before testifying, the
accused sought a ruling from the TJ that the Crown could not cross-examine him on his criminal record (i.e. that
s. 12 CEA didn’t apply to him as the accused). The TJ refused. The accused testified and the Crown crossexamined him on his prior criminal record (including narcotics offences, breaking and entering, theft, etc, and
murder [15 years prior]). C was convicted at trial. C appealed his conviction on the basis that his ss. 7 and 11(d)
rights to a fair trial were violated by the admission of the evidence of his criminal record.
Issues: 1) Does s. 12 CEA violate ss. 7, 11(d) of the Charter? 2) Does the TJ have discretion to exclude portions
of the accused’s criminal record? Holding: 1) No. 2) Yes. (With dissent as to application to facts).
Reasoning:
Majority (Dickson CJC):
 s. 12 CEA assumes that prior convictions bear upon the credibility of a witness; the jury can take account of
a criminal record when assessing credibility.
 C’s argument here is that the trier of fact will be incapable of restricting the use of such evidence to the
issue of credibility  they will tend to conclude that the accused is a bad person, and more likely to have
committed the crime with which they are charged (propensity reasoning  impermissible inference).
 So is the risk that the jury will misuse evidence of the accused’s criminal record so great that s. 12 runs afoul
of the Charter guarantee of a fair trial? Majority concludes no.
 Disallowing evidence of the accused’s criminal record outright has the potential to create an imbalance:
o Accused would be free to attack the credibility of Crown witnesses on the basis of their criminal
records, but would be able to appear as though their own past is unblemished
o This has the potential to mislead the jury
 The best way to alleviate the risks of criminal record evidence of the accused is to give the jury all the
information, but at the same time give them a clear direction as to the limited use they are to make of it
o We have always believed in the good sense of the jury and their ability to follow instructions, and
continue to do so
 s. 12 has been limited by judicial decision, such that the accused is offered some protection from prejudice:
o The accused can only be examined as to the fact of conviction itself, not the underlying details (and not
on discharges)
o Crown is not allowed to Xex the accused on other discreditable conduct
o The Crown is not allowed to adduce this evidence unless the accused takes the stand
 Majority agrees with the dissent that the TJ has the discretion to exclude prejudicial evidence of
previous convictions in an appropriate case (not in this case, however, as dissent believes)
Dissent (La Forest J.):
 Evidence of an accused’s criminal record is relevant and prima facie admissible; it goes to the credibility of
the accused, which is a fact in issue
 However, the accused is clearly prejudiced by evidence of their prior criminal record introduced at trial
 s. 12 assimilates accused to position of an ordinary witness. The trier of fact is entitled to infer that because
the accused committed criminal acts in the past, he/she is more likely to lie now; but the TOF is not entitled
to infer that the accused is also more likely to have committed the offence for which he/she is now on trial.
o However, the logic of the latter inference is more convincing than the former
o We cannot invoke the virtues of the jury system to ignore its flaws
 In order for s. 12 to be constitutional, the TJ must have discretion to exclude evidence of the accused’s
criminal record where its prejudicial effect will outweigh its probative value. Factors to consider:
o Nature of the previous conviction
 Dishonesty crimes will be more relevant to credibility than crimes of violence
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
Crimes of a similar nature to one charged are highly prejudicial (remember high threshold
for SFE) and should only be admitted sparingly
o Remoteness/nearness (in time) to current charge and circumstances of the accused
o Fairness of the trial: we cannot allow the accused to attack Crown witnesses on the basis of their prior
convictions all the while seeming to be completely clean himself. This is distorting.
Ratio: The Crown can Xex an accused who testifies on the fact of their criminal record. This evidence is only to
be used to impugn the credibility of the accused. The TJ has the discretion to exclude this evidence if its
prejudicial effect outweighs its probative value.
Klein on Corbett:
 The majority and the dissent agree on the test applicable to deciding whether or not an accused should be
cross-examined on their criminal record, and if so, what elements of it
 The defence in this case wants C’s entire criminal record excluded, although neither the majority nor the
dissent thinks this is necessary
o The majority and the dissent disagree about letting in the previous conviction for 2nd degree murder
o This is because they take different views of the jury
 Majority: believes in the ability of the jury to handle information properly. Allow the evidence in
and instruct
 Dissent: is concerned with the jury’s ability to control their use of the inference that because the
accused committed murder before, he’s likely to have done it again in this case. No instructions
will be able to alleviate this logical tendency.
o In the application of the test to the facts, both the majority and the dissent agree that the first three
indicators point toward exclusion for prejudice – they disagree at #4 (trial fairness)
 Dickson CJC says it would be unfair to exclude the murder charge because it would make Corbett
look like a fine, upstanding citizen in comparison to the Crown witnesses
 La Forest J says there is already enough evidence to make the jury realize that Corbett is a criminal
 Remember, C’s defence in this case was: I had no motive, because the victim owed me money
for drugs. Why would I kill someone who owes me money?


Since Corbett, there has been a movement towards more liberal editing of criminal records of accused
R. v. Underwood: Defence has the right to know whether the accused’s criminal record is going to be raised
by the Crown, so the defence can choose whether or not to call the accused to testify. So the Corbett
application is made before the accused takes the stand.
***Remember that in the context of criminal records, Handy is irrelevant  we’re adducing past records for
credibility, not for character!
D. SOME ASPECTS OF CROSS-EXAMINATION
The Obligation to Cross-Examine a Witness One Intends to Contradict


Browne v. Dunne (1863 HL, Lord Herschell): if you intend to suggest that a witness is lying, you have to
give them a chance to explain themselves. You can’t just take their evidence, and then say they are lying
when it is impossible for them to defend themselves.
R. v. McNeill (2000 OCA, Moldaver JA): if you do not cross-examine a witness who you contradict:
o Can recall the witness if practicable (if the witness declines to be recalled, no special instruction to jury)
o If witness cannot be recalled, TJ has discretion to give a special instruction to the jury to tell them that,
when weighing the uncontradicted evidence, they can take into account that the witness was not
questioned about it
The Necessary Foundation for Cross-Examination
R. v. Lyttle (2004 SCC)
Facts: The victim ID’d L as his attacker. The defence theory is that the victim made this ID to protect the real
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assailants, who beat up the vic because of a drug debt.
Issue: What kind of basis does a lawyer need to have for their cross-examination questions?
Holding: A good faith basis.
Reasoning (Major & Fish JJ):
 A question can be put to a witness in cross-examination regarding matters that need not be proved
independently, provided that counsel has a good faith basis for putting the question
 A “good faith basis” is a function of the information available to the cross-examiner, his or her belief in its
likely accuracy, and the purpose for which it is used
 Information falling short of admissible evidence may be put to a witness
 The cross-examiner may pursue any hypothesis that is honestly advanced on the strength of reasonable
inference, experience, or intuition
 The purpose of the question has to be consistent with the lawyer’s role as an officer of the court
 “An advocate is entitled to use his discretion as to whether to put questions in the course of crossexamination which are based on material which he is not in a position to prove directly. The penalty is that,
if he gets a denial or some answer that does not suit him, the answer stands against him for what it is worth.”
(this is a reference to the collateral facts bar)
 The good faith basis in this case was created by: the police reports, the complainant’s drug conviction, his
admission at the prelim that he dealt in drugs, and the drug conviction of the person who drove the
complainant to the scene of the alleged attack
Ratio: Any question for which there is a good faith basis may be put to a witness in cross-ex.
The Collateral Facts Bar


The collateral facts bar has to do with how far a party can go to disprove, using independent evidence,
statements made by other parties’ witnesses in cross-ex that are tangential
o The collateral facts bar means that a party can’t bring independent witnesses contradicting the
other party’s witnesses on collateral facts (i.e. questions purely relating to credibility)
 The hard part is deciding what constitutes a collateral fact
o Rationale for the collateral facts bar is efficiency – we do not want to create mini-side-trials within a
trial. They are distracting, and confuse the jury by overloading it with information.
R. v. Rafael (1972 OCA, Arnup JA): in a fraud case, the accused mentioned that he had filed tax returns for
x number of years. The Crown brought evidence to show that he didn’t, in fact, file tax returns. These were
collateral facts which the Crown was not entitled to prove. R’s answer that he filed his taxes stands for what
it’s worth.
Attorney-General v. Hitchcock (1847, England)
Facts: Accused wants to bring evidence showing that a Crown witness had been bribed to testify against him.
Issue: For the purposes of the collateral facts bar, what does “collateral” mean?
Reasoning (Alderson B):
 The evidence of bribery can be brought for two purposes:
o To show the witness had been bribed, and is therefore biased in their testimony  BIAS
o To show the witness was lying when he said he hadn’t been bribed  CREDIBILITY
 If this evidence were only going to credibility, it would be inadmissible; because it also goes to witness bias,
which is always relevant, it’s admissible
 If the evidence you’re tendering to establish that the witness is lying would otherwise be admissible in the
trial, you can use it to impugn the witness
 Collateral facts are relevant, but they are inadmissible because they would cause the trial to become
inefficient – collateral facts are like mini-trials on issues ultimately unrelated to the trial, but related to
establishing that a witness in the trial is lying (about something that isn’t directly relevant to the case)
Ratio: If the evidence a party wants to adduce is only to show that the witness is lying about something
tangential to the case (i.e. something not related to a material fact in the case  offence/defence), in order to
impugn their credibility, that is a collateral fact and the evidence is barred from admission.
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After this case, the category of “witness bias” was generally recognized as an exception to the collateral
facts bar. Other exceptions were recognized, as well, which are generally common ways of impeaching
witness credibility:
o Bias/partiality, prior convictions of a witness, previous inconsistent statements, medical evidence
showing lack of credibility, and witness reputation for dishonesty
o The category of bias/partiality can be seen as an exception to the collateral facts bar, but we could also
see it a relevant issue in the case
Other ways of describing what “collateral” means:
 Phipson: A party may not impeach the credit of his opponent’s witness by calling witnesses to contradict
him in irrelevant matters. The witness’s answers thereon (whether true or false) will be conclusive
 Wigmore: The test for whether an issue is collateral is could the fact, as to which error is predicated, have
been shown in evidence for any purpose independently of the contradiction? If yes, not collateral.
o There are two categories of facts which are NOT collateral:
 1. Facts relevant to an issue in the case
 2. Facts relevant to discrediting a witness which could otherwise be receivable for the purpose of
impeaching witness testimony
 Ex. Witness’s criminal record, bias, corruption, skill, intoxication, illness, opportunity to
observe, circumstances which form the alleged grounds of his recollection, circumstances
affecting the witness’s ability to narrate his story intelligently and correctly
 McCormick: A witness has told a story of a transaction crucial to the controversy; to prove him wrong in
some trivial detail of time, place, or circumstance is ‘collateral’
o This is the “lynchpin exception”  if there is a contradiction in the lynchpin of the story which makes
us question whether the whole story is true or not, then evidence of that contradiction is admissible
o We do not know if this exception applies in Canada
The question to ask to see if the collateral facts bar applies is: are you lying about something that matters to the
outcome of the case?
IV. HEARSAY
A. WHAT CONSTITUTES HEARSAY & THE RATIONALE FOR ITS EXCLUSION
What Is and What Isn’t Hearsay?
Hearsay is an out-of-court statement offered for the truth of its contents.
***Hearsay is in general inadmissible; but there are a number of common law and statutory exceptions***

While an out-of-court statement offered for the truth of its contents is hearsay, an out-of-court statement
that is offered for some other purpose is not hearsay and is not subject to the general exclusionary rule
o For example, if a statement is not being adduced for its truth, but only for the fact that the statement was
made, it’s not hearsay
Subramaniam v. Public Prosecutor (1956 Privy Council)
Facts: S was convicted of possessing ammunition, in violation of the laws of the Federation of Malaya. He was
sentenced to death. He appealed, claiming duress – he was forced to carry the ammunition by the communists!
While testifying, S explained the story of what the communists said to him to make him come with them, but the
trial judge ruled that it was hearsay.
Issue: Is the story of what the communists said to S hearsay? Holding: No.
Reasoning (De Silva):
 Evidence of a statement made to a witness by a person who isn’t present to testify may/may not be hearsay
 It’s hearsay (and therefore inadmissible) when the point of tendering the evidence is to establish the truth of
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what is said in the statement
It is not hearsay (and is therefore admissible) when the point of tendering the evidence isn’t to
establish the truth of what was said, but the fact that the statement was made
o It’s frequently relevant in considering the mental state of the witness and their conduct thereafter
 I.e. It didn’t matter whether the people who told S they were communists were actually communists; it
mattered that they said that to him and led him to believe that.
Ratio: A statement is only hearsay if it was made out-of-court and it is tendered for the truth of its contents.
Klein on Subramaniam:
 The communists are obviously not present to testify as to whether or not they are actually communists
 But it doesn’t matter. All the court needs to know is whether S believed the terrorists were communists
o His defence does not hinge on whether the people who abducted him were actually communists or not –
it is the genuineness of his fear that is in issue

R. v. Wildman (1981 OCA)
Facts: W was the 8-year-old victim’s stepfather. He favoured his own children with the victim’s mother (Joyce)
over the victim. W and Joyce had a violent, stormy relationship. She finally left and commenced divorce and
custody proceedings. On Wednesday February 15, 1978, Tricia (the victim) disappeared; her body was found
Sunday, February 19th with 19 hatchet blows to the head. The defence sought to tender in evidence the testimony
of a neighbour of the couple’s, saying that Joyce had called the neighbour while W was there on February 16th,
saying “someone put an axe in Tricia’s head”. Also on February 16th, W called his lawyer and said Joyce was
accusing him of killing Tricia with an axe (this information is privileged, however). Apparently W knew on the
20th that Tricia was killed with a hatchet. But the police only released this information on the 28th. The trial judge
did not allow the “hearsay” evidence.
Issue: Is the neighbours’ evidence hearsay? Holding: No.
Reasoning (Houlden JA):
 This evidence was not adduced to establish the truth of what Joyce Wildman was saying (i.e. that W had in
fact killed Tricia with a hatchet), but for some other relevant purpose
o That purpose was to show that Joyce had knowledge of the circumstances of Tricia’s death before the
body was discovered; and to explain W’s subsequent conduct (i.e. knowing that Tricia had been killed
with a hatchet)
 There are two possible explanations for W’s knowledge that Tricia was killed with a hatchet on the 20th:
o He killed her, so he knew
o He was told on the 16th by the real murderer, Joyce, how Tricia was killed
 Despite the trial judge’s mistake in not allowing the evidence, there was such overwhelming evidence of
W’s guilt that the appeal is dismissed.
Ratio: A statement is only hearsay if it was made out-of-court and it is tendered for the truth of its contents.
Everything we’ve looked at so far has been explicit statements; sometimes however, the statement which is
sought to be tendered is not explicit. This is called implied hearsay:
Wright v. Tatham (1837 Ex. Ct.)
Facts: Marsden made a will leaving lands to Wright. If not for the will, the lands would have been inherited by
Tatham. Tatham brought an action trying to show that Marsden did not have the capacity to make a will (i.e. that
he was mentally disabled). Wright tried to introduce in evidence letters written to Marsden by persons of his
acquaintance (all now dead at the time of trial), treating him as a fully able person.
Issue: Are the letters hearsay? Holding: Yes.
Reasoning (Parke B):
 If any of the letter-writers were alive and able to testify to the competence of the deceased, that evidence
would be admissible
 But letters are inadmissible because all facts which are relevant to this issue should be proved under oath
Klein on Wright:
 Wright’s lawyers tried to show that Marsden was of sound mind by adducing letters
o These letters do not say that Marsden was of sound mind (are not addressed to John Marsden, you man
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of sound mind you)
o They imply that Marsden was a man of sound mind by the way they treat him
The judge in this case does not have a lot of faith in this evidence – does not know why the letters are
treating Marsden in this way. Maybe they are just being nice.
We cannot know if the letter-writers actually believed Marsden was a man of sound mind or not, because
they are not present to testify
R. v. Wysochan (1930 SCA)
Facts: W was convicted of murdering the victim (and was sentenced to death). His defence is basically to point
the finger at the victim’s husband. The prosecution tried to tender evidence that the victim asked for her husband
after she had been shot (but obviously before she died), and when he came near she asked him for help (“Stanley
I have a bullet in me”; “Stanley I’m cold”). The prosecution’s point is that the victim would not have asked for
her murderer.
Issue: Is this evidence hearsay? Holding: No.
Reasoning (Haultain CJS):
 The admission of the victim’s statements was not meant to prove their truth – it was just to prove a state of
mind that had a circumstantial use
 The utterance is not used for the sake of inducing belief in any assertion it may contain
 The utterances in question contained no statement of facts necessary to be proved – are only evidence of a
feeling or attitude of mind
o It’s for the jury to decide what inferences might be drawn from them
Ratio: Since this statement was not tendered for the truth of its contents, it does not constitute hearsay.
Klein on Wysochan:
 This is implied hearsay because the victim does not say “Wysochan shot me” or “Stanley you are not my
killer” – she implies it by reaching out to Stanley, thus implying he wasn’t her killer
 Note that Wysochan was executed following this judgment.
 This case is universally heald up as a case where the statements should have been excluded as impermissible
hearsay
The Rationale for the Rule against Hearsay




Hearsay is not excluded because it has no logically probative value
o Given that the subject matter of hearsay is relevant to some issue in the trial, it is potentially probative
The rationale for excluding it as inadmissible is a recognition of the great difficulty of assessing what
weight can properly be given to the statement by a person whom the jury have not seen or heard, and
which has not been subject to any test of reliability by cross-examination (rooted in the jury system)
o A trier of fact who is trying to assess hearsay has to first assess the credibility of the witness who
reports the hearsay, and then the credibility of the declarant (who is not sworn to tell the truth, cannot be
observed nor cross-examined)
o *Remember this – with hearsay, we’re not worried about the witness’s credibility (they can be crossexamined), we’re worried about the declarant’s credibility (they aren’t there)
The hearsay dangers are: absence of the oath, the lack of opportunity to observe the declarant, and
the inability to cross-examine the declarant on their statement
The danger against which the fundamental rule excluding hearsay provides a safeguard is that untested
hearsay evidence will be treated as having probative force which it does not deserve
***Note that the hearsay exclusionary rule is a way to exclude evidence whose prejudicial effect outweighs its
probative value.***
B. THE PRINCIPLED APPROACH TO HEARSAY
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The old approach to hearsay: hearsay is excluded unless it falls within a recognized exception
The new approach to hearsay: hearsay is excluded unless it is necessary and reliable enough.
o We now approach hearsay on a principled basis: looking at the rationale for which the exceptions were
created (encouraging reliability), admitting or not admitting hearsay evidence would either serve or not
serve those goals
The exceptions still exist, but we look at them differently than we used to
Note that the principled approach brings more flexibility than the old categories, which were rigid tests. But
it also brings great uncertainty, because the approach is highly discretionary.
R. v. Khan (1990 SCC)
Facts: K was a family doctor. T (the three-and-a-half year old victim) and her mother went to see him for checkups. T and K were in his office alone together for about five minutes. Fifteen minutes after T and her mother left
his office, T told her mother that K “put his birdie in her mouth and peed.” T also had semen on her sweater. At
trial, the trial judge ruled that T was incompetent to testify. The Crown tried to call her mother as a witness in
order to testify to the statements T had made to her after leaving the doctor’s office. The trial judge rejected them
as hearsay that did not fall into any of the recognized exceptions (esp. spontaneous declaration).
Issue: Did the trial judge err in rejecting the mother’s statement of what the child told her? Holding: Yes.
Reasoning (McLachlin J):
 The hearsay rule has traditionally been regarded as an absolute rule, subject to various categories of
exceptions (such as spontaneous declarations)
o This approach has provided certainty, but is also very inflexible
 Could expand the spontaneous declaration exception to cover children of “tender years” who make
statements up to an hour after the event (this exception normally requires contemporaneity), but it might
actually undermine the reason for having the exception in the first place
o i.e. Crown could bring evidence that isn’t necessary, might not be reliable. For example, if T was
competent to testify, could bring her mother as corroborating evidence that she made those statements
 The courts are rather adopting a more flexible approach, rooted in principle and the policy underlying the
exclusion of hearsay in the first place
 There are two general requirements for hearsay to be admissible:
o Necessity  “reasonably necessary”
o Reliability  consider timing, demeanour, intelligence/personality of child, reason to fabricate
 In this case:
o Statement was necessary because T was incompetent to testify
o Statement was reliable because T was disinterested, she had no way of knowing about the sexual act she
recounted to her mother, came out naturally and without prompting, corroboration of real evidence
 In sum: hearsay evidence of a child’s statement on crimes committed against them should be received,
provided the guarantees of necessity and reliability are met
Ratio: This case begins the principled approach to hearsay based on reliability and necessity.
Klein on Khan:
 Note that this whole issue arises because T, the young victim, is decided to be incompetent to testify at trial
– the law of incompetence of children to testify was reformed in light of this decision
o So the prosecution wants to bring T’s mother’s testimony about what T said after it happened
 T’s mother’s testimony is clearly going to be relating hearsay: T’s statement was made out of court, and it’s
offered to show that Dr. Khan did actually sexually assault T
 The Court wants to let in this evidence because it seems inherently reliable. Has two options:
o 1. Expand the spontaneous declarations exception by relaxing the requirement for contemporaneity (in
the context of young children) [has been done in some US jurisdictions]
 This might end up letting in hearsay that we don’t need, and tramples on the reasons for the
traditional rule
o 2. Do away with the exceptions, and say that based on the principles for which hearsay is excluded, this
evidence doesn’t present much of a problem.
 Hearsay is excluded because it’s deceivingly unreliable. So in order to let in the evidence, it needs
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to be necessary and reliable
Necessity: is the declarant truly unavailable to testify?
o Does not mean important to the Crown’s case
o In this case, the incompetence of the child to testify satisfies this requirement; would also be satisfied if
she would suffer undue trauma by being forced to testify
Reliability: circumstantial guarantees of reliability must be of the declarant, not the witness
o Timing, demeanour, personality, disinterest in the outcome of the litigation
o In this case, tender years gives indications of reliability
At the time this case was decided, no one was sure if it was to be confined to its facts, or it commenced a
new approach to hearsay that was applicable in other circumstances
R. v. Smith (1992 SCC)
Facts: S is charged with killing Ms. King. They are both American, from Detroit. They travelled to London,
Ontario together, likely in order to do a drug deal. Ms. King was found dead near a service station in Ontario.
The Crown is trying to have Ms. King’s mother testify to the contents of 3 phone calls she had with her daughter
on the night she died.
 First phone call (hotel-Mom): “Larry abandoned me at the hotel and I need a ride home”
 Second phone call (hotel-Mom): “Larry still hasn’t returned”
 Third phone call (hotel lobby pay phone-Mom): “Larry came back for me”
 Fourth phone call (pay phone near service station-Mom): “I’m on my way” [not in issue]
Issue: Are the phone calls admissible? Holding: 1 and 2 are, but not 3.
Reasoning (Lamer CJC):
 Khan should not be confined to its facts; it should be understood as a triumph of a principled analysis
of hearsay over a set of ossified judicially created categories
o Khan signalled a departure from a view of hearsay characterized by a general prohibition on its
admissibility, subject to a limited number of categorical exceptions towards an approach governed by
the principles which underlie the rule and its exceptions alike
o The categorical approach is dead; hearsay evidence is now admissible on a principled basis, the
governing principles being reliability of the evidence and necessity of the evidence
 Reliability: are there circumstantial guarantees of the trustworthiness of the statement?
 Necessity: does not mean necessary to the prosecution’s case. It means the relevant direct evidence is
not available, for a variety of reasons.
 Where the criteria of necessity and reliability are met, the lack of testing the evidence by cross-examination
goes to weight, not admissibility
 The trial judge has residual discretion to exclude the evidence when its probative value is slight and undue
prejudice might result to the accused.
 Application to this case:
o All of the evidence offered by Ms. King’s mother is necessary, because Ms. King is dead.
o Only the first two phone calls are reliable, however. She had no reason to lie at this point.
o The third phone call gave Ms. King reason to lie; she did not want the other person proposed to pick her
up – Phillip – to pick her up. Since she was in Detroit using a fake name and fake credit cards, “she was
at least capable of deceit.”
Ratio: Khan is not to be confined to its facts. The proper approach to hearsay is no longer the exclusionary rule,
mitigated by categories of recognized exceptions. It is a principled approach governed by the necessity and
reliability of the proffered hearsay evidence.
Klein on Smith:
 SCC makes clear that the rule in Khan is generally applicable. This is an end to the old categorical approach
 Facts: Smith is charged with allegedly strangling his girlfriend.
o Crown’s theory: S came back and strangled her after the vic called her Mom
 Crown wants to admit all three calls
o Defence theory: S never came back – someone else killed her
 Defence wants to admit the first two calls (showing that Larry abandoned the vic and hadn’t come
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back), but not the third (showing that Larry came back)
Are these phone calls hearsay? Yes. They were made out of court, are tendered to prove the truth of their
contents (that Larry actually left and came back), and the declarant is not available to testify at trial (is dead).
o These statements don’t really fit into any hearsay exception
The mother’s testimony about the phone calls is clearly necessary, because the victim is deceased
So we are worried about their reliability. Court decides first two phone calls are reliable, but not third.
Is this problematic?
o Yes. There is no real principled distinction between the second and third phone calls. It seems like the
more potent the evidence, the more reliable the court is going to want it to be.
o Threshold reliability/ultimate reliability – phone calls one and two have enough threshold reliability to
go to the jury to have their ultimate reliability determined; phone call three doesn’t have enough
threshold reliability to go to the jury
 In this case, arguably the level of threshold reliability varies with how damning the evidence is (is
higher if it’s more damning). But it SHOULDN’T vary, should it?
R. v. B.(K.G.) (1993 SCC)
Facts: The victim, Joseph Wright, and his brother got into a fight with four boys (all minors). One of the boys
stabbed Joseph and killed him. The three other boys provided videotaped statements to the police, in the
presence of parents, and in one case, a lawyer, that KGB told them that he stabbed Wright. At trial, all three
recanted. The Crown applied under s. 9 of the Canada Evidence Act to cross-examine the boys on their prior
inconsistent statements – the boys responded that they lied to the police. The Crown sought to adduce the prior
inconsistent statements for the truth of their contents: i.e. to prove that KGB admitted that he killed Wright.
Issue: Are prior inconsistent statements of witnesses other than the accused admissible for the truth of their
contents under the new, principled approach to hearsay? Holding: Yes.
Reasoning (Lamer CJC):
 The rationale for the orthodox rule that prior inconsistent statements made by witnesses other than the
accused can only be used to impeach witness credibility, not for the truth of their contents, rests on the
traditional exclusion of hearsay. This rule ought to be reconsidered in light of Khan and Smith.
 So when are prior inconsistent statements made by witnesses other than the accused admissible for the
truth of their contents?
o 1. When they would have been admissible as the witness’s sole testimony
o 2. When they are RELIABLE: i.e. the circumstances under which the statement is made provide
sufficient guarantees of its trustworthiness.
 i. Statement is made under oath, solemn affirmation/declaration
 ii. Declarant was warned that criminal prosecution could occur if they lied in their statement
 iii. Statement is videotaped (or there is another reasonable substitute for “presence”, i.e. the ability
of the trier of fact to observe the demeanour of the witness as they give the prior statement)
 iv. The declarant can be cross-examined on their prior statement at trial (where they have recanted)
o 3. When they are NECESSARY: i.e. the statement itself is unavailable.
 The procedure to have a prior inconsistent statement accepted for the truth of its contents is as follows:
o The calling party invokes s. 9 of the Canada Evidence Act and satisfies the court in the voir dire held
under that section
o The calling party states their intention to use the prior inconsistent statement for the truth of its contents
 Must satisfy the court, generally on balance of probabilities, that statement is necessary/reliable
o The calling party must satisfy the court that the prior inconsistent statement was not the product of
coercion in any form (threats, promises, excessively leading questions by the investigator, etc) and that
admitting it would not bring the administration of justice into disrepute.
o The presiding judge still has the discretion to refuse the evidence if it is too prejudicial
 In this case, the evidence passes the test. It is admitted for its substance.
Ratio: Prior inconsistent statements by witnesses other than the accused are admissible for the truth of their
contents under the principled approach to hearsay, beefed up a little at the reliability stage.
Klein on KGB:
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The witnesses did not see KGB stab the victim; they said KGB told them that he stabbed the victim
o KGB says “I stabbed Wright” to 3 others. These 3 others report to the police that KGB told them he
stabbed Wright.
o At trial, the three witnesses recant their statements; they refuse to say that KGB confessed to them
 Their statement to the police becomes a prior inconsistent statement
o Crown not only wants to cross-examine the witnesses on their prior inconsistent statements in order to
impugn their credibility. Crown also wants to bring the statements made to the police and admit them
for the truth of their contents
 This is double hearsay (2 levels of hearsay)
 1) Prior statement – prosecution wants to have the police come in and say the boys say that
KGB told them that he stabbed Wright
o declarant = the boys; the witness = the police
 2) KGB’s confession
o declarant = KGB; the witness(es) = the boys
The court isn’t too worried about the first statement (KGB’s confession to the boys)
o Category approach = confession is a party admission; also a statement against legal interest
The second statement (the boys’ statement to the police) is more problematic
o Doesn’t fit into any accepted exceptions to the hearsay rule
o So Lamer says that in light of Smith and Khan, the exception approach is open to question
What are the circumstantial guarantees of reliability?
o These are the guarantees you get at trial:
 Under oath (but oaths don’t mean what they used to)
 Presence (observability)
 Contemporaneous cross-examination
o Where there are adequate substitutes for these at the time of the prior statement, it can be taken for the
truth of its contents (cf. Khan/Smith): here, there were.
 Statement was taken under oath
 There are serious repercussions for lying to the police (charges for obstructing justice, fabricating
evidence)
 Statement videotaped (observability)
 No cross-examination is happening, of course; but they are present at trial to be cross-examined
This case is good for two reasons:
o Explaining the principled approach to hearsay, what constitutes necessity and reliability
o Leading case on the admissibility of prior inconsistent statements (basically is a new hearsay exception,
but we don’t call it that!)
Note that necessity and reliability are kind of on a sliding scale – they are not independent of one another
Together, necessity and reliability need to add up to admissibility
So if necessity isn’t terribly great, but reliability is a virtual certainty, the evidence can be admitted
C. THE EXCEPTIONS TO THE RULE AGAINST HEARSAY
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In Smith, it sounded like the exceptions were gone, and we were only to use the principled approach from
here on out. This is not what happened, however.
o Lawyers continued to invoke the exceptions as examples of categories of evidence that meet the criteria
of the principled approach
So the exceptions still exist. In this section, we see what they are and how they interact with the principled
approach.
Hearsay Exception #1: Res Gestae

Res gestae means “part of the transaction”
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Wigmore says this exception is confusing and harmful: it doesn’t convey anything about the exceptions that
fall under it. He would prefer if we recognized a bunch of subcategories.
i) Excited Utterances
 One’s mind is so overwhelmed by an event that one does not have time to make anything up that would be in
one’s own interest
R. v. Clark (1983 OCA)
Facts: C went over to her ex-husband’s house to get lawn chairs. The ex-husband’s new wife was there, and they
got into a fight. The new wife got stabbed and C was charged with second-degree murder. C claimed selfdefence, and alternatively, provocation. The unfortunately named Fawn Pitcher, a neighbour, gave the evidence
in question at trial. She testified to having heard the victim say “Help! I’ve been murdered! I’ve been stabbed!”
Issue: Is this admissible under the spontaneous declaration exception to the hearsay rule? Holding: Yes.
Reasoning (Durbin JA):
 The spontaneous declaration exception to the rule excluding hearsay:
o Under certain circumstances of physical shock, the stress of nervous excitement produces an utterance
which is a spontaneous and sincere response to the actual sensations and perceptions already
produced by the external shock
o This utterance is made under the immediate, uncontrolled domination of the senses, during brief period
when considerations of self-interest could not have been brought fully to bear by reasoned reflection
o It is therefore particularly trustworthy as an expression of the real tenor of the speaker’s belief as to the
facts just observed by him
 A spontaneous hearsay statement is admissible in evidence provided that the risk of concoction or
distortion can be excluded
 The narrow test of exact contemporaneity should no longer be followed
 In this case, the circumstances under which the words were said excluded the possibility of concoction and
distortion – they were evidence of the belief of the deceased as to what had occurred
Ratio: A spontaneous declaration is a kind of surprised utterance reflecting a sensation or perception, in which
there is no time or opportunity to make anything in one’s self-interest up.
Klein on Clark:
 The victim’s statement was not exactly contemporaneous with her stabbing
 The judge says that the circumstances in this case “exclude the possibility of distortion” – so the statement
does not have to be completely contemporaneous (this is a new modification to this exception)
ii) Statements of Present Physical Condition
 “Oh, I’m hot in here”; “Ow, that hurts!”
 No time for concoction, has to be contemporaneous
iii) Statements of Present Mental State
 “I am upset”, as relayed by a third party is the same as the third party saying “she looked upset” which is
obviously admissible
iv) Statements of Present Sense Impressions
 “Wow that Corvette was going really fast!”
 Mind does not have to be overwhelmed, but statement has to be contemporaneous with the event
Hearsay Exception #2: Statements by Parties

A statement by a party offered by an opposing party is admissible for its truth
o This exception should not be confused with:
 Statements against (legal) interest
 Formal admissions made in pleadings/guilty pleas
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The exception is motivated by the adversarial nature of the common law trial – can cross-examine the other
party on the statement
Hearsay Exception #3: Business Records
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For a business record to be admissible, the statement must:
o 1) Relate to some act or transaction performed by the person making the statement in the ordinary
course of business
o 2) Have been made in the ordinary course of business, under a duty to make it
o 3) Be made at or near the time at which the act or transaction to which it relates was performed
See Canada Evidence Act, ss. 29-31.
Hearsay Exception #4: Statements Against Penal Interest
R. v. Pelletier (1978 OCA)
Facts: Cormier, David, and Pelletier were roommates. Cormier was killed one night. The police initially arrested
David. David told the police that all three roommates had been drinking on the day of Cormier’s death. He and
Cormier had gotten into a fight where Cormier grabbed him by the neck; so David pushed him, Cormier fell and
basically never got up again (it took David and Pelletier until the next day to figure out he was dead, leaving him
laying on the floor in the meantime…). David was charged with manslaughter, but before his prelim, the charges
were withdrawn and Pelletier was charged. At Pelletier’s trial, Pelletier is trying to adduce David’s statement to
the police where he basically admits he killed Cormier. David has absconded from the jurisdiction and cannot be
found to testify at trial, despite the efforts of the Crown, police, and Pelletier’s counsel.
Issue: Can David’s statement be admitted under the hearsay exception for statements against penal interest?
Holding: Yes.
Reasoning (Jessup JA):
 A declaration against the penal interest of a person (who is not present at trial) is admissible at the trial of an
accused who seeks to prove the declaration (i.e. the statement is generally EXculpatory for the accused)
 R. v. Demeter: five factors to consider to see if a statement is one against penal interest
o [The fact must be one within the peculiar knowledge of the declarant (O’Brien)]
o 1. Declaration would have to be made to such a person and in such circumstances that the declarant
should have apprehended a vulnerability to penal consequences as a result
o 2. The vulnerability to penal consequences would have to be not remote
o 3. Considered in the context of the totality of the evidence, if the weight of the statement is in favour
of the declarant, it is not a statement against penal interest
o 4. In a doubtful case, the Court might consider whether or not there are any other circumstances
connecting the declarant with the crime, and whether or not there is any connection between the
declarant and the accused
o 5. The declarant is unavailable by reason of death, insanity, grave illness, absence from a jurisdiction
 In this case, numbers 3 and 5 are relevant to consider because are contested:
o 3. Yes, David’s statement puts forward a defence of self-defence. But it is still an admission of an
assault made to police when they were investigating manslaughter by assault, and places the deceased’s
body in the place where it was found. In light of all the evidence, this declaration made by David was
against his interest.
o 5. David was unavailable, in the sense that he could not be brought in to the trial (inability of a party to
find the witness suffices)
o His statement was one against penal interest, and is therefore admissible hearsay
Ratio: This case sets out considerations to help determine whether a statement made by a party who is not at trial
is a statement against their penal interest, such that it can be admitted at trial under the hearsay exception for
statements against penal interest.
Klein on Pelletier:
 This case is relaxation of the third requirement (statement can’t be in favour of the declarant)  says that
even if there are some exculpatory elements to the declarant, can let it in if it’s mostly against the declarant’s
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penal interest
Lucier v. The Queen (1982 SCC)
Facts: L was charged with arson. His house was destroyed by fire while he was away and shortly after he
increased his fire insurance. L’s friend, Dumont, told the police that L paid him $500 to set the fire. He,
unfortunately for him, died from the burns he sustained doing so. The Crown is trying to tender Dumont’s
statement at L’s trial.
Issue: Is Dumont’s statement admissible as a statement made against his penal interest? Holding: No.
Reasoning (Ritchie J):
 In a proper case, statements against penal interest made by an unavailable person can be admitted at trial on
behalf of the accused when they can be shown to have been made against the penal interest of the person
making them  i.e. they INculpate the declarant, and thus EXculpate the accused
o But this rule does not extend to statements that INculpate the ACCUSED as well
 Difference is important. A statement implicating the accused in the crime charged, emanating from the lips
of one who is no longer available to give evidence robs the accused of the invaluable weapon of crossexamination which has always been one of the mainstays of fairness in our courts
 The statements made by Dumont are obviously inculpatory to L, so they cannot be admitted under the
exception to the hearsay rule for statements against penal interest
Ratio: Only statements against penal interest that EXCULPATE the accused are admissible. Those that also
have the effect of inculpating the accused are not.
Klein on Lucier:
 The judge says Dumont’s statement is not admissible because Dumont, the declarant, is not only inculpating
himself, but also inculpating the accused
o Says declarations against penal interest can only be used to EXCULPATE the accused, not
INCULPATE the accused
 On the rationale for admitting hearsay that we have, which is that the evidence is reliable and necessary, this
distinction makes little sense
o This distinction is really about fairness to the accused, not about necessity or reliability
 Here, we find the hearsay rule fashioned along other lines than the search for the truth (trial fairness)
 This case has not been overruled per se, but since it’s inconsistent with the principled approach, it would
likely give way.
Hearsay Exception #5: Statements of Intention
R. v. P.(R.) (1990 Ont HCJ)
Facts: P is accused of killing the victim. The Crown is trying to adduce the evidence of several witnesses who
spoke to the victim in the days and months preceding her disappearance. The content of this testimony relates to
the victim’s state of mind: her unhappiness in the controlling relationship she had with P, and her intention to
leave him, and to move out from his place permanently.
Issue: Are these hearsay statements admissible under the exception for statements of intent? Holding: Yes.
Reasoning (Doherty J):
I. Are the Victim’s Utterances – as Relayed by Others – Relevant?
 The statements made by the victim are relevant to showing her state of mind (permit one to draw a
reasonable conclusion respecting her state of mind)
 The identification of the killer is the ultimate material fact in issue in this case. Proof of motive is relevant to
proof of identification. Any evidence tending to show motive will be admissible as relevant.
o The statements of the victim’s intention to leave P are relevant to his motive to kill her
II. Are the Utterances Excluded by Any Rule of Evidence?
 The utterances are hearsay, so inadmissible. But if the statements are explicit statements of a state of
mind, they are admitted as exceptions to the hearsay rule
 Evidence of the victim’s state of mind is direct evidence of that state of mind or the victim’s intentions,
and circumstantial evidence that they acted in accordance with those intentions
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
The statements made by the victim to others, proffered via their testimony, fall within the state of
mind exception to the hearsay rule
III. Should Any of the Utterances be Excluded because of their Prejudicial Potential?
 Prejudice can refer to several things – in this case, means the danger that the jury, despite instructions to the
contrary, will use this evidence for purposes other than drawing inferences and conclusions about her state of
mind and subsequent conduct (i.e. they might infer that P was tyrannical, and the sort of person to kill)
 The trial judge must consider: 1) the probative value of the evidence (tendency to prove a fact in issue), 2)
the prejudicial effect of the evidence (risk it will be used improperly), 3) balance the usefulness of the
evidence with the risk it will be used improperly
 In this case, all of the statements which indicate P was tyrannical, or treated the victim like a slave, or
surveilled her, etc. are too prejudicial to be admitted. All of the statements that indicate the victim’s intention
to leave P and to move out of his home are admitted as probative and not very prejudicial.
Ratio: Statements of intention by parties who are not available to testify at trial are admissible as an exception to
the rule against hearsay. They are direct evidence of the declarant’s state of mind, and circumstantial evidence of
the fact that the declarant acted in accordance with their intentions.
R. v. Starr (2000 SCC)
Facts: Cook (who is the victim and a well-known gang member) was released from prison. He spent that night
with Jodie Giesbrecht. The next night after that, he was drinking at the Westbrook Hotel in north Winnipeg with
Darlene Weselowski and Robert Starr (the accused). They left around 2:00am. Cook and Darlene left in
Darlene’s car, and were also driving another couple, the Balls (teeheehee…). Starr left in his own car. Cook,
Darlene, and the Balls stopped for gas. Jodie was at the gas station, and approached Cook. They got into a fight
because Cook was out with Darlene instead of her. She asked Cook why he wouldn’t come home with her
instead of going with Darlene; he said he had to “go and do an Autopac scam with Robert.” Jodie saw Starr in
a smaller car at the gas station. Cook left with Darlene and the Balls, and dropped the Balls off at home. Mrs.
Ball saw a smaller car following Cook and Weselowski. Cook and Weselowski were found shot dead several
kilometres away, with the smaller car wrecked nearby. The Crown’s theory is that Starr lured Cook out into an
isolated area with the pretence of doing an Autopac scam, and executed him for gang reasons there. Weselowski
was just in the wrong place at the wrong time. The defence theory is one of identification – they claim that there
were other gang members present in the car with Starr and at the scene of the crime (there was a decent amount
of other evidence that confirms the presence of others).
Issue: Is Cook’s hearsay statement that he had to “go and do an Autopac scam with Robert” admissible under
the exception for statements indicating state of mind/present intentions? Holding: No, with dissent.
Reasoning:
Majority (Iacobucci J. + 4):
Is the Statement Hearsay? Yes.
 Cook’s statement was made out-of-court (at the gas station)
 The Crown is adducing Jodie’s testimony on Cook’s statement to prove the truth of its contents:
o The Crown want to show it was Cook’s intention to go and do an Autopac scam with the accused
o And the Crowns also wants to the jury to infer that Cook followed through on this intention
o BUT THE CROWN’S PURPOSE GOES BEYOND THIS: the Crown ALSO wants adduce Cook’s
statement to prove that it was also STARR’S (the accused) intention to go and do the insurance scam
with the victim; and that he acted in conformity with his intentions
Is this Statement Admissible under the “State of Mind/Present Intentions” Exception to the Hearsay Rule? No.
 The exception arises when the declarant’s statement is adduced in order to demonstrate the intentions,
or state of mind, of the declarant at the time when the statement was made
o Wigmore: the statement should be of a present existing state of mind, and must appear to have
been made in a natural manner, and not under circumstances of suspicion
 The exception permits the admission into evidence of statements of intent or of other mental states for the
truth of their contents
o Also, in the case of statements of intention particularly, to support an inference that the declarant
followed through on the intended course of action (provided it is reasonable on the evidence for the trier
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of fact to infer that the declarant did so)
There are some inferences that are NOT permissible to make from a hearsay statement of intention:
o The declarant’s out-of-court statement of intention is not admissible to show the state of mind of
persons other than the declarant; OR to show that persons other than the declarant acted in
accordance with the declarant’s stated intentions
o I.e. statement of intent of the declarant cannot be used to prove the act or intention of any other person
 IN THIS CASE: majority decides that the statement is not admissible under the present intentions
exception to the hearsay rule for 3 reasons
o 1. The statement was made in circumstances of suspicion which cast doubt on its reliability – it
therefore does not fall within the present intentions exception
 Cook had reason to lie to Jodie – i.e. her jealousy of Darlene.
o 2. Statement was inadmissible for the purpose tendered because it was a statement of joint intention
 The evidence was admitted to prove not only the intentions of the declarant Cook, but also the
intentions of Starr, the accused
 Statements of joint intention are not automatically inadmissible  the controversy is not so much
over whether the statement can be admitted, but rather over the use to which it can be put
 Statements of intention which refer to intentions of persons other than the declarant may be
admissible if the trial judge clearly restricts their use to proving the declarant’s intentions
 No such instruction was given at trial to restrict the use of the statement of intention to
inferring Cook’s intention and subsequent acts (not Starr’s)
o 3. The evidence was more prejudicial than probative
 The trial judge saw the prejudice of this statement as being only that the jury might view Starr as
the type of person to commit insurance fraud – but saw the victim in the same light, so admitted it
 But this was not the primary source of prejudice. The other impermissible inferences that the jury
might have drawn from Cook’s statement were that the appellant was in the car that followed
Cook, that the appellant was alone in that car (because Cook referred only to him), and that the
appellant lured Cook to an isolated area with the Autopac scam
The Relationship Between the Principled Approach and the Traditional Exceptions to the Hearsay Rule
 The exceptions are practical manifestations of the principled approach in concrete and meaningful form
o They must be rationalized according to the principled approach, however, where need be
 Evidence falling within the traditional exceptions is presumptively admissible
 Principled approach must prevail in situations where it is in conflict with an existing exception
o i.e. Where a statement falls in a traditional exception, but does not meet the criteria of necessity
and reliability, it must be excluded
o Me: Also, by corollary, where a statement does not fall within an exception, but meets the criteria of
necessity and reliability, it can be admitted
 IN THIS CASE: the statement is not admissible under the principled approach because it is not reliable.
Dissent 1 (McLachlin CJC + 1):
 Agreement of the reformulation of the present intentions exception to the hearsay rule (i.e. that it must not be
made under circumstances of suspicion)
 But disagreed that there were circumstances of suspicion making Cook’s statement inadmissible
 Note: in some circumstances, a statement of joint intention can be fairly considered along with other
evidence in deciding what a third party did (it should not be the ONLY evidence on that point, however)
Ratio: This case 1) reformulates the present intentions exception to the hearsay rule and 2) outlines the
relationship between the principled approach to hearsay and the traditional exceptions.
Klein on Starr:
 This case creates a framework for assessing how the exceptions interact with the principled approach
 It also modifies the present intentions exception to say it cannot be used where the statement is made in
circumstances of suspicion
 Note that the statements of intention of one person cannot be used to infer another person’s intentions

R. v. Mapara (2005 SCC):
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The relationship between the traditional exceptions and the principled approach is as follows:
o 1. Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay
rule. The traditional exceptions to the hearsay rule remain in place.
o 2. A hearsay exception can be challenged to determine whether it is supported by indicia of necessity
and reliability, required by the principled approach. The exception can be modified if necessary to
bring it into compliance.
o 3. In “rare cases,” evidence falling within an existing exception may be excluded because the indicia
of necessity and reliability are lacking in the particular circumstances of the case
o 4. If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of
reliability and necessity are established on a voir dire
Note also paras 215 and 217 of Starr:
para 215: “It is important when examining the reliability of a statement under the under the principled approach
to distinguish between threshold and ultimate reliability. Only the former is relevant to admissibility. […]
Threshold reliability is concerned not with whether the statement is true or not; that is a question of ultimate
reliability. Instead, it is concerned with whether or not the circumstances surrounding the statement itself provide
circumstantial guarantees of trustworthiness. This could be because the declarant had no motive to lie, or
because there were safeguards in place such that a lie could be discovered.”
para 217: “At the stage of hearsay admissibility the TJ should not consider the declarant’s general reputation for
truthfulness, nor any prior or subsequent statements. These factors do not concern the circumstances of the
statement itself. Similarly, I would not consider the presence of corroborating or conflicting evidence.”
Klein on this aspect of Starr:
 Starr wants us to only consider the intrinsic guarantees of reliability at the threshold reliability stage, not the
extrinsic guarantees of reliability  extrinsic reliability guarantees go to ultimate reliability of the
statement, to be assessed by the trier of fact (not by judge at the admissibility stage)
 This makes some sense, because all the categorical exceptions are made on the basis of intrinsic guarantees
of reliability (no time to fabricate, contemporaneity, etc)
 But it’s also problematic for some previous decisions:
o Is a motive to lie intrinsic or extrinsic? Remember Smith.
o What about the semen stain in Khan? It’s corroborating evidence that was used to bolster the reliability
of the hearsay statement so it could be admitted
 This element of Starr is overturned in Khelawon
R. v. Khelawon (2006 SCC)
Facts: Five elderly residents of a retirement home told various people (worker in the retirement home, the
doctor, police) that they were assaulted by the defendant, the manager of the home. By the time of trial, 4 had
died of old age and the last was no longer competent to testify. Four had made videotaped statements to the
police, which were all pretty similar. This appeal is about the admissibility of 1 of the videotaped statements,
that of Mr. Skupien.
Issue: Are Mr. Skupien’s hearsay statements admissible? Holding: No.
Reasoning (Charron J.):
 Basic rule of evidence: all relevant evidence is admissible. There are many exceptions to this rule. One is
hearsay: even relevant hearsay is not admissible (unless it fits into an exception).
 What is hearsay? 2 elements:
o The statement is adduced to prove the truth of its contents
o Absence of a contemporaneous opportunity to cross-examine the declarant
 N.B. This applies to witnesses who are before the court but have changed their story – their
inconsistent out-of-court statement becomes hearsay
 Central concern underlying the hearsay exclusionary rule: the difficulty of testing the reliability of the
declarant’s assertion (hard to know how much weight to assign to hearsay)
o Adversarial system places a lot of value on: calling witnesses in open court, testimony under oath,
ability to observe demeanour of witness, opportunity to test the testimony by cross-examination
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o
By ensuring that litigants get the opportunity to confront adverse witnesses, the hearsay rule serves as a
cornerstone of a fair justice system
Comment on Reliability
 The admissibility inquiry for hearsay is concerned with threshold reliability, not ultimate reliability (i.e.
weight given to the evidence in deciding the issues). Admissibility (and therefore threshold reliability) is for
the judge; ultimate reliability is for the trier of fact
 Starr’s framework to assess threshold reliability (and distinguish it from ultimate reliability) is problematic
o It is not easy to discern what is or is not a circumstance surrounding the statement itself
 Motive to lie? Will necessarily have to consider outside factors to determine if someone had a
reason to fabricate at the time they made their statement
 Relevant factors should no longer categorized in terms of threshold and ultimate reliability. The court should
adopt a more functional approach and focus on the particular dangers raised by the hearsay evidence sought
to be introduced and on those attributes or circumstances relied upon by the proponent to overcome them
 Note: the use of corroborating evidence to bolster the reliability of hearsay is not “bootstrapping” – that’s
when the evidence uses itself as corroboration (ex. this statement should be admitted because declarant had
no motive to lie; but it’s the hearsay statement that shows the declarant had no motive to lie)
o It’s a matter of common sense that one of the best ways to determine if what someone says is
trustworthy is to see if it is corroborated by other evidence
The Approach to Hearsay
1. Is it hearsay?
a. Is the statement adduced to prove the truth of its contents?
b. Is there no opportunity for a contemporaneous cross-examination of the declarant?
2. If the proposed evidence is identified as hearsay, it is presumptively inadmissible
3. Does the hearsay fall within a traditional exception? If so, it is presumptively admissible
4. If not, must move to principled approach. Must interpret necessity and reliability flexibly, taking account
of the circumstances of the case.
a. The (Threshold) Reliability Test: is the hearsay reliable enough?
i. Is the hearsay inherently trustworthy enough that cross-examination would be of little
marginal utility in establishing the value of the evidence?
1. Examples: testimony in former proceedings, no motive to lie, no lapse in time so
that perception/memory become an issue, no likelihood of influence by another,
statement is corroborated by other admissible evidence
ii. OR: Can the truth or accuracy of the hearsay nonetheless be sufficiently tested by other
means (i.e. substitute method for trier of fact to rationally evaluate the evidence)?
1. Examples: availability of the declarant to be cross-examined (on their prior
inconsistent statement)
b. The Necessity Test: is the hearsay necessary?
i. Necessity is given a flexible definition
ii. Necessity is not equated with the unavailability of the witness: it is based on the
unavailability of the testimony
iii. The context giving rise to the need for the hearsay evidence may impact on the degree of
reliability required to justify its admission
Application to This Case
 The evidence tendered is undoubtedly hearsay; it does not fall within traditional exceptions; can it be
admitted under the principled approach? I.e. is it necessary and reliable?
 The hearsay evidence is undoubtedly necessary, the declarant is dead
 Is it reliable?
o No adequate substitutes to cross-examination to test reliability of evidence – only the police video
o So, is the hearsay inherently trustworthy? No. Declarant’s mental capacity at issue, may have been
influenced, corroborating evidence was inadmissible, the things he says in the video are contestable
by expert evidence (i.e. his injuries could have occurred through a fall as well as a beating)
 Hearsay in this case is inadmissible.
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Ratio: The principled approach to hearsay exclusionary rule requires that in order to be admissible, hearsay must
be necessary and reliable.
Klein on Khelawon:
 In this case, the court abandons the distinction between intrinsic and extrinsic circumstances of reliability as
a way of determining threshold/ultimate reliability
 Court will look at two things to determine reliability:
o Inherent trustworthiness of the statement
o Whether evidence can be tested
 At the stage of ultimate reliability, the trier of fact must take into account ALL of the evidence in the case,
and evaluate the trustworthiness/importance of the hearsay in light of that
R. v. Blackman (2008 SCC)
Facts: B is charged with murdering Ellison (shooting him). Crown’s theory: B shot E as revenge, because 1 year
before, E stabbed B outside a bar. The Crown alleges that B also tried unsuccessfully to kill E two months before
E’s actual murder by shooting him. The same gun was used in both shootings. The evidence in issue is
statements that E made to his mother (Gwendolyn Freckleton ) in the months preceding his death: that he
stabbed someone outside a bar, and that that same person was the one who tried to kill him the first time. The
Crown is trying to adduce the mother’s testimony as to what her son told her.
Issue: Is this admissible hearsay? Holding: Yes.
Reasoning (Charron J.):
 The central concern in this case is the reliability of the statements – cannot cross-examine E on the
statements he made to his mother
 TJ admitted the mother’s testimony because Ellison’s statements were reliable enough: E had nothing to gain
by telling his mother he stabbed someone, in fact it would be against his interest. It was consistent with the
“code of silence” in the neighbourhood that E would tell his mother more than he told the police.
o This finding is entitled to a certain amount of deference
 Note that otherwise admissible hearsay can be excluded if its prejudicial effect outweighs its probative value
 The difficulties with Ms. Freckleton’s evidence can be left to the ultimate trier of fact, because she can be
cross-examined on her memory, veracity, etc.
Ratio: This is an illustration of the use of Khelawon.
Klein on Blackman:
 This case supports the Khelawon idea the criteria of admissibility need to be refocused along the lines of the
hearsay dangers and how they can be alleviated
 Also note that the credibility of the witness (not the declarant) is not a reason to exclude hearsay
V. PRIVILEGES
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



So far, we’ve only seen rules that exclude evidence because it’s not helpful in the search for the truth; now,
we’re turning to rules that exclude evidence for other reasons, policy reasons
Privilege protects information from disclosure in court even where the information is relevant and probative
o The exclusion of privileged information is an acknowledgement by the legal system that truth is not an
absolute value
Evidence that meets the requirements of a privilege is inadmissible unless the holder of privilege waives it
There are “class” privileges (communications occurring therein are presumptively inadmissible, onus on the
person trying to adduce the information)
o Solicitor-client privilege, spousal privilege, informer privilege, litigation privilege
And there are “case-by-case” privileges (communications occurring therein are only privileged if the person
who asserts the privilege convinces the court it’s an appropriate case in which to uphold the privilege)
o Doctor-patient, psychologist-patient, journalist-informant, religious communications
A. CLASS PRIVILEGES: SOLICITOR-CLIENT PRIVILEGE
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SCP is a near absolute privilege. It used to be a rule of evidence, but is now a substantive principle (can be a
sword, as well as a shield) (Descoteaux)
SCP is necessary because it protects the fundamental relationship of trust between lawyers and clients,
which is indispensable to the effective operation of the legal system (Foster Wheeler Power Co.)
o Free and candid communication between the lawyer and client protects the legal rights of the citizen
Requirements of the Solicitor-Client Privilege

Canada v. Solosky (1980 SCC): in these conditions, privilege attaches whether or not it is claimed.
1. Communication must be between a solicitor and their client
a. “Solicitor” can include their agents (secretaries, students)
2. It must entail the seeking of legal advice
3. Must be intended to be confidential
What constitutes seeking legal advice?
Pritchard v. Ontario (Human Rights Commission) (2004 SCC)
Facts: P filed a human rights complaint against her former employer, Sears, alleging gender discrimination,
sexual harassment, and reprisal. The Commission decided not to deal with her complaint because it was made in
bad faith (because she had signed a release when she got her severance saying she wouldn’t sue Sears). She
sought judicial review, and the Commission’s decision was quashed as having misinterpreted bad faith. P refiled, Commission denied it again, and she is seeking JR again. She brought a motion for production of all
documents that were before the Commission when it made its decision, including a legal opinion provided to the
Commission by in-house counsel.
Issue: Is this document subject to solicitor-client privilege? Holding: Yes.
Reasoning (Major J):
 The opinion provided to the Commission by staff counsel was a legal opinion
 Procedural fairness does not require breach of SCP – both may coexist. Plaintiff was aware of the case to be
met without the privileged document.
 If the Commission’s legislation required that they disclose “the whole of the record”, and specified that that
included legal opinions, there would be no expectation of confidentiality and privilege would not attach
o But the legislation does not say that
Ratio: When a government agency seeks legal advice from in-house counsel, that constitutes the seeking of legal
advice for the purposes of solicitor-client privilege.

Foster Wheeler Power Co.: not every fact within a solicitor-client relationship has to do with the giving of
legal advice. Only when it concerns legal advice. The fact that information arises in the context of a
solicitor-client relationship will raise a presumption that it is privileged, however.
Waiver of Solicitor-Client Privilege


Pritchard shows a way for SCP to be waived by statute
R. v. Campbell (1999 SCC): the accused argued that he had been entrapped by police. Counsel for the
Crown argued that the officers involved relied in good faith on a legal opinion provided to them by Crown
counsel before undertaking the operation. SCP attaches to this communication, but it was waived when the
officers relied on it in their defence.
Exception #1 to Solicitor-Client Privilege: Facilitating a Criminal Purpose


Legal advice must be lawful to attract protection (Descoteaux)
o Confidential communications lose that character if and to the extent they were made for the purpose of
obtaining legal advice to facilitate the commission of a crime
In order to bring about the destruction of the privilege, however, there must be something to suggest that the
advice facilitated the crime or that the lawyer otherwise became a dupe or conspirator (Campbell)
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So even if a lawyer doesn’t know that they are facilitating a criminal purpose, the information they give
in that context is not privileged
Exception #2 to Solicitor-Client Privilege: Public Safety

This exception falls into a much larger category of “duty to warn” case law. The cases specifically on
privilege and public safety ask: when is SCP not a bar to warning someone about the danger?
Smith v. Jones (1999 SCC)
Facts: Jones was charged with aggravated sexual assault. His lawyer referred him to a psychiatrist, Dr. Smith,
for assessment that could help in preparing the defence or sentencing. J’s lawyer told him that the consultation
was privileged in the same way that their communications were. Dr. Smith interviewed J, and J told the doctor
about his detailed plans to kidnap, rape, and murder prostitutes from Vancouver’s Downtown East Side. S told
J’s lawyer about his opinion that J was a continuing danger and significant threat. Upon finding out that the court
would not find out about his report, S commenced the action to disclose his report himself.
Issue: Can solicitor-client privilege be breached in the interest of public safety in this case? Holding: Yes.
Reasoning:
Majority (Cory J. + 5):
 SCP is integral to the functioning of the legal system. The onus rests upon those seeking to set SCP aside to
justify their claim.
o Danger to public safety can provide the requisite justification
 The Test for When Public Safety Outweighs Solicitor-Client Privilege:
o 1. Is there a clear risk to an identifiable person or group?
 Questions to consider: is there evidence of long-range planning, specific method for the attack
thought out, prior history of violence, similarity of that prior history
 A group or person must be ascertainable; but it can still be a large group
o 2. Is there a risk of serious bodily harm or death?
 Serious psychological harm qualifies as bodily harm
o 3. Is the danger imminent?
 This doesn’t necessarily mean it’s happening soon
 The nature of the threat must create a sense of urgency
o In summary, SCP should only be lifted where the facts raise real concerns than an identifiable
individual or group is in imminent danger of death or serious bodily harm.
 Extent of the disclosure required: the portions of the communications that refer to the risk of serious harm to
an identifiable group, involving death or serious bodily harm, and imminence
 In this case, it’s clear there was a serious risk of serious, imminent harm to an identifiable group. The
report’s information that make this clear must be disclosed to the court.
Concurrence (Major J. + 2):
 The rule is that conversations with defence experts fall within SCP. Agreement that it may fold where public
safety requires it. The majority’s test for public safety exception to SCP is agreed with.
o The difference with the majority is in the scope of disclosure.
 The majority’s scope of disclosure risks encouraging defence counsel either to not refer their clients to
treatment or counselling, or to wait until after trial to do so
o This means dangerous people could be on bail, without diagnosis/treatment
 Completely breaching the privilege creates a chilling effect on those individuals in need of treatment for
serious and dangerous conditions from seeking professional help
o Completely lifting the privilege and allowing his confidential communications to his legal advisor to be
used against him in the most detrimental ways will not promote public safety, only silence
 The breach of the privilege must be as narrow as possible: the accused’s own words should not be
conscripted against him. Only the doctor’s opinion and the fact that it’s based on consultation with the
accused should be disclosed.
 The public interest in this case is twofold: that the accused not harm anyone, and that he obtain treatment
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Ratio: SCP should only be lifted where the facts raise real concerns than an identifiable individual or group is in
imminent danger of death or serious bodily harm.
Klein on Smith v. Jones:
 Cory J for the majority would limit disclosure to that indicating imminent risk
o This includes J’s past planning and future plans, and all the underlying details
 Major J for the dissent would limit disclosure to non-conscriptive evidence
o This would limit disclosure to the expert’s opinion that there is something to be concerned about here
o Why? Because the public safety is better served not by disclosure, but by encouraging people like J to
seek the treatment they need
 Note that dissent isn’t referring to the privilege to justify their more limited disclosure; are referring to the
reason for the exception itself, public safety. Public is better protected by privilege than by disclosure.
Exception #3 to Solicitor-Client Privilege: Innocence at Stake

R. v. McClure: no privilege is absolute and it must give way in a case where there is a danger that an
innocent person may be wrongfully convicted
R. v. Brown (2002 SCC)
Facts: Shaun Baksh was murdered on July 21. On August 12, Donna Robertson told 2 homicide detectives that
her then-boyfriend (David Benson) confessed to her that he killed Baksh. Robertson also told the police that
Benson confessed to his lawyers, as well (Eddie Greenspan, in fact). The police could never find enough
evidence, and never charged Benson. They ended up charging Brown, a client (drugs) of Baksh’s, after a
jailhouse informant said he overheard Brown tell another inmate that he killed Baksh.
Issue: Can Brown get Benson’s SCP for his confession to his lawyers waived under the innocence at stake
exception? Holding: No.
Reasoning (Major J):
R. v. McClure (2001 SCC):
 SCP should be infringed only where core issues going to the guilt of the accused are involved and there is a
genuine risk of wrongful conviction. It is a rare exception and should be used as a last resort only.
 The test for whether privilege can be waived because the innocence of the accused is at stake:
o 1. Threshold test. Accused must establish that:
 The information he seeks from solicitor-client communication is not available from any other
admissible source
 He is otherwise unable to raise a reasonable doubt
o 2. Innocence at stake test.
 Stage A: The accused seeking production of the solicitor-client communication has to demonstrate
an evidentiary basis to conclude that a communication exists that could raise a reasonable doubt as
to his guilt
 Stage B: If such an evidentiary basis exists, the TJ should examine the communication to
determine whether, in fact, it is likely to raise a reasonable doubt as to the guilt of the accused
o If test is satisfied, TJ should order disclosure of the communications likely to raise a reasonable doubt
In this case:
 (1) The information is available from another source, Robertson.
o The motions judge did not find it likely that her hearsay evidence would be admitted (and if it was,
would be discredited as unreliable), so granted the McClure application for Benson’s lawyer-client
communications to be disclosed
 These communications were more likely to be admitted as they are more reliable.
 The motions judge thought that “other available source” meant a source that would actually help
the accused. This is erroneous, apparently.
o This conclusion was premature. The judge ought to have decided whether or not Robertson’s evidence
was admissible before ruling on the McClure application.
 McClure applications should only be dealt with at the end of the Crown’s case, and then can be
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reconsidered throughout the defence’s case
2(a) There is an evidentiary basis for thinking some lawyer-client communications that could exonerate
Brown exist (from Robertson’s testimony)
o 2(b) Not necessary to decide.
 Note that the quality of the privileged evidence (in comparison to other available evidence, for example) is
not a factor in this analysis.
 A failed McClure application could precede a wrongful conviction, yes; but these can be dealt with by the
royal prerogative (s. 690 Cr.C.) (?!)
 In the case of a successful McClure application, the judge should only order disclosure of those
communications that are necessary to allow an accused to raise a reasonable doubt (only to defence)
Ratio: This case sets out the test for the innocence at stake exception to privilege.
Klein on Brown:
 The threshold stage of the test asks: is this person’s whole case so bad that they are likely to be convicted
without this privileged information?
o A bit problematic, because are basically asking the judge to find you guilty before your case closes
 The first stage of the “innocence at stake” part asks: why does the accused believe there is something in the
privileged file that could exonerate them?
 The second stage of the “innocence at stake” part looks at the actual lawyer-client communications for the
first time, and sees if the accused was right or not
 Abrogating SCP with this exception should be a last resort; so the McClure application should be done at the
end of the trial
 Note that the privileged information must go to an element of the offence or a defence that could not
otherwise be raised
 Cannot use a McClure application to bolster a defence that you’re already making
 Also cannot use this exception for credibility (commentator don’t like that; credibility often sways a case)
 The “innocence at stake” exception is not intellectually honest, says AK. Any piece of evidence could be the
one that raises the reasonable doubt by tipping the balance in favour of the accused.
 SCC says that SCP is so important that it might be worth it to admit otherwise inadmissible hearsay if it
prevents the use of this exception to breach SCP
 This exception could be loosened by: allowing an innocence at stake exception to SCP to provide
corroborating evidence, or where the only other evidence on that point is extremely weak

B. CLASS PRIVILEGES: INFORMER PRIVILEGE


Informer privilege is intended to protect the identity of police informers to guard them from criminal
retribution and to encourage them to come forward
R. v. Scott (1990 SCC): 3 exceptions to the informer privilege:
o 1. If the informer is a (or the only) material witness to the crime
o 2. Where the informer has acted as an agent provocateur (mostly cases where accused is relying on
defence of entrapment)
o 3. Accused seeks to establish that a search was in contravention of s. 8; court should try to provide
accused with as much information as possible (by means of editing out information identifying
informer)
R. v. Leipert (1997 SCC)
Facts: Crimestoppers got a tip that L was conducting a marijuana grow-op in his basement. Police officer
walked by with a sniffer dog; both the dog (Bruno) and the police officer (nameless!) smelled pot. PO noticed
the basement windows were covered and barred. Got a search warrant based on this information. L was charged
with cultivation and possession for the purpose. At trial, asked to see the Crimestoppers tip sheet; Crown
refused; TJ ordered production to him and edited it for disclosure to accused. Crown abandoned the charges.
Issue: Is the defence entitled to receive the details of an anonymous tip to Crimestoppers? Holding: No.
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Reasoning (McLachlin J):
 Informer privilege is an “ancient and hallowed protection which plays a vital role in law enforcement”
o Premised on the duty of all citizens to help in enforcing the law
o This duty carries a risk of retribution from those involved in crime
o Informer privilege was developed to protect citizens who assist in law enforcement and to encourage
others to do the same
 Information regarding police informers’ identity is a class of information which it is in the public interest to
keep secret; this interest will prevail over the need to ensure the highest possible standard of justice
 Once established, informer privilege cannot be abridged at the discretion of the police or court
 The privilege belongs to the Crown, but they cannot waive it without the consent of the informer
 Informer privilege prevents not only disclosure of the name of the informant, but any information that could
possibly identify them – and the smallest details may be sufficient to reveal identity
o When their ID is known, they can be contacted to help edit the information to be disclosed
o When they are anonymous, there is no way of knowing what will ID them and what won’t
 Anonymous tip sheets therefore should not be edited with a view to disclosing them to defence,
unless the accused can bring himself within an exception
 The only exception to informer privilege is the innocence at stake exception
 The accused’s right under the Charter to make full answer and defence and to disclosure are not exceptions
to informer privilege; they are subject to privilege (unless innocence is at stake)
 If the court concludes that disclosure is necessary, the court should only reveal as much information as is
essential to allow proof of innocence
o Before disclosure, Crown should be given option of staying proceedings
Ratio: Informer privilege is pretty much the strongest privilege that exists; it bows only before the innocence at
stake exception.
Klein on Leipert:
 This case was decided before Smith v. Jones, so it says informer privilege is only subject to innocence at
stake exception; but it’s also subject to public safety exception
C. CASE-BY-CASE PRIVILEGE
Slavutych v. Baker (1976 SCC)
Facts: S was fired from his professorship at the University of Alberta because, amongst other reasons, he wrote
really nasty things in a questionnaire concerning a co-worker’s tenure application. This questionnaire was
supposed to be confidential. S sued for wrongful dismissal, and defendant wants to adduce the tenure form.
Issue: Can this evidence be admitted or is it subject to privilege? Holding: Subject to privilege.
Reasoning (Spence J):
 Wigmore’s Test for the Establishment of a Privilege against Disclosure of Communications:
o 1. The communications must originate in a confidence that they will not be disclosed
o 2. This element of confidentiality must be essential to the full and satisfactory maintenance of the
relation between the parties
o 3. The relation must be one which in the opinion of the community ought to be sedulously fostered
o 4. The injury that would inure to the relation by the disclosure of the communications must be greater
than the benefit thereby gained for the correct disposal of the litigation
 The stupid tenure form sheet apparently fulfils the test for privilege, according to the stupid SCC. It was
marked “confidential,” this confidentiality was essential to the operation of the tenure procedure, we want
the relationship between university colleagues to flourish, and it would be better that this relationship be
fostered than the litigation correctly be disposed of.
Ratio: The Wigmore test for case-by-case privilege is officially adopted into Canadian law.
Klein on Slavutych:
 This case represents the integration of the Wigmore test into the Canadian common law
 The Wigmore test decides whether privilege will apply to a particular confidential communication
o #4 is the most controversial because it cannot be assessed beforehand, only once the litigation arises
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Contrast case-by-case privilege with SCP: a lawyer can make a strong promise to a client that their
communications will probably be kept confidential
o Other professionals cannot do so
In this case, the court takes a broader view of case-by-case privilege than it ever will again
R. v. Gruenke (1991 SCC)
Facts: G was a reflexologist; she had an 82-year-old client that befriended her, as well as her mother (had lost
her father at 15). She regarded him as a father figure. He lent her money to start her own reflexology business
and also provided for her in his will. However, he began to sexually harass her. One day, he came to see her,
repeated his requests for sex, a struggle ensued, and he ended up dead. Defence theory: G’s boyfriend, present at
the time, killed G defending her and she had nothing to do with it. Crown theory: G and her bf plotted to kill the
victim to end the sexual harassment as well as get the money from the inheritance. G confessed some things to
her pastor and counsellor at the Victorious Faith Centre Church that dovetailed with the Crown’s theory.
Issue: Are G’s confessions to her pastor/counsellor at the Church privileged, either through a class privilege
applicable to pastor-penitent communications, or based on a case-by-case privilege?
Holding: The communications are not privileged (but tenure applications are. ..?).
Reasoning:
Majority (Lamer CJC + 5):
 There are two categories of privilege: “class” privilege (aka blanket, prima facie, common law privilege) or
“case-by-case” privilege
 Class privilege:
o Privilege recognized at common law, prima facie presumption of inadmissibility
o Applies unless the party urging admission can show why communications should NOT be privileged
o Communications excluded not because the evidence is irrelevant, but because there are overriding
policy reasons to exclude this relevant evidence
 Case-by-case privilege:
o Communications for which there is a prima facie assumption that they are not privileged, i.e. that they
are admissible
o Have to apply the Wigmore test in order to see whether communications should be privileged (i.e. not
admissible) in particular cases
o The case-by-case analysis requires that the policy reasons for excluding otherwise relevant evidence be
weighed in each particular case
 There is no common law or class privilege for religious communications
o Question of whether prima facie privilege exists for religious communications is one of policy
 Argument for a class privilege for religious communications is reminiscent of the pigeon-hole
approach to the admissibility of evidence – court is now taking a more principled approach
o The policy reasons which underlay the treatment of solicitor-client communications as privileged are
not equally applicable to religious communications
 Are not essential to the effective operation of the legal system, and inextricably linked with the
justice system
 There can be a case-by-case privilege for religious communications, but it does not apply in this case
o A case-by-case analysis will allow courts to determine whether, in the circumstances, the individual’s
freedom of religion will be imperilled by the admission of evidence
o While s. 2 of the Charter enhances the claim that religious communications should be privileged, the
freedom is not absolute and must be determined on a case-by-case basis
o Where the Wigmore criteria are satisfied, religious communications can be excluded
o In this case, the communications fail on the first step of the Wigmore test – were not intended to be
confidential, were not originally confidential
 Without this expectation of confidentiality, the raison d’etre of the privilege is missing
 Furthermore, these communications were made more to relieve G’s emotional stress than for a
religious or spiritual purpose
Concurrence (L’Heureux-Dubé J + 1):
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
There is a human need for a spiritual counsellor which must be recognized for true religious freedom
o There is a value to society in the human need to disclose to a spiritual counsellor, in total and absolute
confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and
guidance in return
o This value must supersede the policy of the search for truth
 Wigmore originally outlined his four-step test as a way of recognizing NEW class privileges, not privileges
that are recognized to evidence in each individual case
 An ad hoc approach to privilege may overshadow the long-term interest which a religious privilege
would seek to preserve
o Wigmore did not envision weighing specific cleric/confider interests against litigants’ interests in
a specific case – he contemplated weighing society’s interest in clergy/confider relationships
generally against society’s interest in access to full information in litigation
 If religious privilege is only recognized on an ad hoc basis, a person will not know if their confession will be
afforded protection – so the person may not confess at all, or may not confess as freely
 The majority’s approach has a chilling effect on the spiritual relationship within our society
 In any given case, however, the specific nature of the relationship must be examined to ensure it fits in the
category – the religious, spiritual nature of the communication must be prominent, and it must be meant to
be confidential
Ratio: Religious communications do not attract a prima facie privilege from being disclosed in litigation; each
time a religious communication is sought to be adduced in litigation, the communication will have to pass the
Wigmore test in order to attract privilege in that case.
Klein on Gruenke:
 The court cites Khan and says “we do not like pigeon-hole approaches anymore, so we refuse to create new
class privileges”
o This is a totally ass-backward view of why the principled approach came about
o In the context of hearsay, the move toward a principled approach was because the pigeon-hole approach
was no longer serving the truth-seeking rationale for the rule (i.e. the categories were either letting in
unwarranted hearsay, or excluding good hearsay)
o The rationale for class privileges is to protect the relationships – class privileges do that much more
effectively than do ad hoc case-by-case privileges
 Court also says that religious communications or therapeutic communications, unlike lawyer-client
communications, are not essential to functioning of the legal system, so will not be protected as stringently
o Why are the aims of the justice system so much more important than all other social goods?
A.(M.) v. Ryan (1997 SCC)
Facts: When she was 17, MA underwent psychiatric treatment from Dr. Ryan – he sexually assaulted her. She
later sought counselling for this harm from Dr. Parfitt. She was very concerned at the time that the counselling
be confidential; Dr. Parfitt assured her it was, going so far as to not take notes to make MA more comfortable.
MA is now suing Dr. Ryan for damages. His lawyers want to see the notes and reports of her therapist about
their meetings. Court of Appeal ordered disclosure, with limits: only the lawyers and the expert witnesses could
see the reports (not the accused), they could not disclose what was in there, no copies could be made.
Issue: Should the psychiatrist’s notes and records made in the course of MA’s treatment be disclosed in this civil
suit? Holding: Yes, with limitations (with dissent).
Reasoning:
Majority (McLachlin J):
 Traditional common law viewed privilege as an all-or-nothing exemption; recent jurisprudence has
recognized the appropriateness of partial privilege in some situations  only some of the documents in a
given class must be produced under partial privilege
 Fundamental proposition: everyone owes a general duty to give evidence relevant to the matter before the
court, so that the truth may be ascertained
 The law permits certain exceptions to this fundamental duty – are called privileges
o Permits privileges where they are required to serve a public good greater than search for truth
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
Wigmore test for establishing whether a privilege exists in a certain situation:
o 1. Communication must originate in a confidence
o 2. Confidence must be essential to the relationship in which the communication arises
o 3. Relationship must be one which should be “sedulously fostered” in the public good
o 4. If all these requirements are met, court must consider whether the interests served by protecting
the communications from disclosure outweigh the interest in getting at the truth and disposing
correctly of the litigation (i.e. if interest in confidentiality trumps interest in truth for this case)
 Here, it is obvious that the psychiatrist-client relationship passes the first three steps – communications were
confidential, confidentiality is essential to continued existence and effectiveness of therapeutic relations, and
society wants to foster good mental health among all people, especially victims of abuse
 Fourth requirement requires the benefits of granting the privilege to be balanced with the benefits
created by not granting it
o Benefits of granting privilege: MA can continue her treatment, other people will seek trauma
counselling, protecting privacy interests
o Benefits from not granting privilege: getting at the truth and preventing an unjust verdict
 In the balancing act required by the fourth step, the conclusion does not have to be all-or-nothing –
court can make an order for partial privilege: i.e. disclosure only to the degree necessary to serve the
ends of the ascertainment of truth in the trial
o Privacy of plaintiff v. defendant’s right to make a full defence can be balanced by recognizing partial
privilege and making an order for partial disclosure
o Court can also edit the documents, impose conditions on who can see and copy the docs
 Argument by counsel for Ryan that McLachlin J. wishes to shut down: claim that by commencing action v.
Dr. Ryan, MA has forfeited her right to confidentiality
o Not the case. Claimant is just trying to get the damages that law allows her – does not give her
opponent licence to delve into private aspects of her life which need not be probed for the proper
disposition of the litigation
Dissent (L’Heureux-Dubé J.):
 There are class privileges (burden of proof on person seeking disclosure) and case-by-case privileges
(burden of proof on person seeking no disclosure)
o Notes from therapy are a case-by-case privilege
 Critique of McLachlin’s approach: doctrine of partial privilege is still ad hoc – it still fails to fulfil the
policy objectives of encouraging victims of sexual assault to seek therapy as well as redress in the form
of a civil action (because they are not assured confidentiality across the board – will have to prove it)
 She finds that the court should go through the documents requested much more carefully to screen them for
relevance, before they release them.
 This makes sure that the common law of privilege adequately balances the Charter values of privacy,
equality (to victims of sexual assault – primarily women, and the crime is much more private in nature) and
the right to a fair trial
Ratio: Psychiatric notes can be the subject of privilege, but not always.
Klein on AM:
 The plaintiff’s communications fail at step 4 of the Wigmore test – the truth-seeking function of the court
outweighs her interest in personal privacy and her therapeutic relationship (and also the public interest in
these goods)
 The “flexibility” of the court’s approach here is in no way serving the purpose of having the privilege in the
first place, as we can see in this case


The class privilege is obviously much stronger than the case-by-case privilege
o But class privileges are reserved for relationships that serve the ends of the justice system (solicitorclient, informer privileges)
Other privileges may have something to do with the integrity of the justice system as well, says AK
o May encourage victims of harm to come forward
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D. THE PRIVILEGE AGAINST SELF-INCRIMINATION



The privilege against self-incrimination is unlike other privileges
o It is not designed to protect an important relationship, or confidential information
o It is intended to prevent the state from being able to conscript the accused against himself in a criminal
investigation
At common law, a person did not have to answer questions that would incriminate him.
s. 5 CEA takes away this true privilege against self-incrimination, and replaces it with a statutory obligation
to answer all questions. In return, s. 5 says the answers can’t be used against you in a criminal proceeding:
s. 5 CEA
Incriminating questions
(1) 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.
Answer not admissible against witness
(2) Where with respect to any question a witness objects to answer on the ground that his answer 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, and if but for this Act, or the Act of any provincial legislature, the witness would therefore have
been excused from answering the question, then although the witness is by reason of this Act or the
provincial Act compelled to answer, the answer so given shall not be used or admissible in evidence
against him in any criminal trial or other criminal proceeding against him thereafter taking place,
other than a prosecution for perjury in the giving of that evidence or for the giving of contradictory evidence.
s. 11(c)
Charter
s. 11(d)
Charter
11. Any person charged with an offence has the right
(c) not to be compelled to be a witness in proceedings against that person in respect of the offence
11. Any person charged with an offence has the right
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an
independent and impartial tribunal
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.
s. 13
Charter


The general view is that s. 5 CEA and s. 13 of the Charter are the same (the only difference is that you may
have to invoke s. 5 when answering the question for it to be operative; s. 13 operates without invocation)
So the State, under both s. 5 CEA and s. 13 Charter, cannot use a person’s confession on the stand to later
convict them in proceedings where they are the accused (use immunity)
o But the State can get the idea to investigate you from your testimony (no transactional immunity)
o A person will also get derivative use immunity under s. 7 of the Charter (s. 7 fills the gaps in s. 13,
which only applies to witnesses and to the statements given by them)
Note: in s. 13, burden falls on the Crown; in s. 7, burden falls on the claimant.
Section 7 of the Charter


Privilege against self-incrimination is also a principle of fundamental justice protected by s. 7 of the Charter
There are 3 devices used to safeguard this right (Re Application Under s. 83.28 of the Criminal Code):
o Use immunity: protects the individual from having the compelled incriminating testimony used directly
against him in a subsequent proceeding (this is protected by s. 13 largely)
o Derivative use immunity: insulates the individual from having the compelled incriminating testimony
used to obtain other evidence. That evidence is inadmissible unless it was discoverable by other means.
o Constitutional exemption: provides a from of complete immunity from testifying where proceedings are
undertaken or predominantly used to obtain evidence for the prosecution of the witness
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Another type of immunity that isn’t often granted is “transactional immunity”: absolute immunity from
being prosecuted for the substance of the offence testified to in the previous proceeding
Evidence that violates the privilege against self-incrimination as protected by s. 7 will be excluded pursuant
to s. 24(2) of the Charter (at least we hope this still happens, in light of the change from Stillman  Grant)
o

R. v. S(RJ) (1995 SCC)
Facts: RJS and JPM were charged with the same offence, but were indicted and tried separately. The Crown
tried to call JPM in RJS’s trial to provide evidence against him. JPM argued that this violated his right against
self-incrimination.
Issue: Can JPM be forced to testify at RJS’s trial?
Holding: Yes, but JPM is entitled to immunities regarding the use of his evidence against him.
Reasoning (Iacobucci J):
 A person in JPM’s situation gets three protections:
o JPM would not be compelled to testify if the proceedings were adversarial with respect to him (i.e. if he
were the accused) – s. 11(c) of the Charter
o In subsequent proceedings against JPM, he is entitled to use immunity for his statements at the previous
trial (i.e. they cannot be directly used to incriminate him) – s. 13 of the Charter
o He is also entitled to derivative use immunity for his previous statements at trial (i.e. JPM’s evidence
cannot be used to find more evidence [i.e. physical evidence] that the Crown would otherwise not have
discovered, which they then admit against him) – s. 7 of the Charter
 Question to ask: practically speaking, would the evidence, on the facts, have otherwise come to
light? If yes, Crown can use it. If no, Crown cannot use it.
 This evidence was not created by the accused, so it is not directly self-incriminatory  but it is
still indirectly self-incriminatory because the evidence could not otherwise have become part of the
Crown’s case
 Where the trial judge is faced with a situation where the accused’s own previous evidence is either being
directly admitted against him, or was used to find other evidence that is being directly admitted against him,
TJ has discretion to exclude it if its prejudicial effect outweighs its probative value.
o Discretion will normally be exercised in favour of exclusion
Ratio: Where the Crown compels a witness to testify at the trial of an accused, they are entitled to use and
derivative use immunity for their testimony if they are then prosecuted for the same offence.
Sidenote: McClure Applications
 On a McClure application, an exception is made to privilege on the grounds that someone’s innocence is at
stake. Usually arises when someone other than the accused has confessed to the offence for which the
accused is standing trial.
 What are the rights of the person who has confessed (but not testified) and who is the holder of the privilege
that is lost if the application is successful? They have use and derivative use immunity, but not transactional
immunity (under s. 7 of the Charter). See R. v. Brown:
o McClure allows for disclosure of privileged information in the exceptional circumstance that it is
necessary to prevent a wrongful conviction
 This information should be limited to that purpose only  it should not be used to incriminate the
privilege holder
o The immunity of the privilege holder in the case of a McClure application is different from other types
of immunity:
 The privilege holder is not the accused, nor most often is he a witness – so cannot claim the right
not to testify under s. 11(c) or the protection of s. 13 of the Charter.
 Immunity of the privilege holder therefore falls to be addressed by the broader principles of
fundamental justice inherent in s. 7 of the Charter
o The privilege holder whose information is disclosed pursuant to a McClure application gets use
immunity and derivative use immunity (because the court has coerced them to reveal their info)
 So these communications cannot be used in subsequent case against the privilege holder
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
o
o
And any evidence that was clearly derived from the privileged statements cannot be used in a
subsequent case against the privilege holder
 Derivative use immunity covers evidence derived from the communications, not from the fact
that they were disclosed
Use and derivative use immunity should prohibit the Crown from both using the communications
as direct evidence against the privilege holder (now the accused), and from using them to impeach
the privilege holder
The privilege holder does not get transaction immunity (immunity from any future criminal prosecution
for the crimes which are the subject of the solicitor-client communications)
Section 13 of the Charter
Dubois v. The Queen (1985 SCC)
Facts: D was charged with second-degree murder. At trial, he testified in his own defence, admitting he killed
the victim, but giving some justification. He was convicted, and successfully appealed on the basis of jury
misdirection. At his new trial, he did not testify. The Crown read in the accused’s testimony from the first trial
(his counsel objected on the basis of s. 13 of the Charter, but it was unsuccessful). He was again convicted.
Issue: When a new trial is ordered on the same charge, can the Crown adduce as evidence-in-chief the testimony
of the accused given at the first trial? Holding: No.
Reasoning (Lamer J):
 The right against self-incrimination outlined in s. 13 needs to be viewed in light of two closely related rights,
the presumption of innocence (s. 11(d)) and the right of non-compellability (s. 11(c))
 The “right to be presumed innocent” is a way of expressing the fact that the Crown has the ultimate burden
of establishing the guilt of the accused
o If there is any reasonable doubt at the end of the case, the accused must be acquitted
o Accused has the initial right to silence, and the ultimate benefit of any reasonable doubt
 Non-compellability means not only that the accused need not testify, but he does not even have to respond,
or bring any evidence, unless the Crown’s case proves beyond a reasonable doubt that he is guilty – if the
Crown’s case doesn’t reach this standard, the accused doesn’t have to say a word and is entitled to acquittal
 The right against self-incrimination: guarantees the right not to have a person’s previous testimony used to
incriminate him or her in other proceedings
o Who is the beneficiary of the right? Any witness, not just those that are compelled. Includes an
accused who chooses to testify
o What is incriminating evidence? Whether the evidence is “incriminating” (and thus attracts the privilege
of inadmissibility) is to be assessed at the second proceedings (not the first, or first and second). Can
assume that any evidence tendered by the Crown is incriminating.
o What constitutes “any other proceedings”? Means the new trial of an accused, as well as any others.
 “I do not see how the evidence given by the accused to meet the case as it was in the first trial
could become part of the Crown’s case against the accused in the second trial. … The accused is
being conscripted to help the Crown discharge its burden of a case to meet, and is thereby denied
his right to stand mute until a case has been made out.”
 To allow the Crown to do so would be to allow them to do indirectly what they cannot do directly
Ratio: If the accused has a new trial ordered on appeal, their testimony given at the first trial cannot be read
directly into evidence at the second trial.



In Dubois, the majority left open the issue of what happens if the accused chooses to testify at their second
trial (and implicitly, changes their story): does s. 13 protect the accused from being cross-examined on their
prior testimony at the first trial as a prior inconsistent statement?
In Kuldip (1990), SCC decided that the use of the prior testimony in order to impeach the accused’s
credibility was NOT a violation of s. 13 (but cannot use prior testimony to incriminate the accused)
In Noel (2002), the court held that the Crown can cross-examine the accused on their prior testimony in
order to impeach their credibility alone; but if the evidence has an incriminating effect, it’s inadmissible
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Does this read “incriminating” in s. 13 narrowly? Is this a departure from the broad, purposive
interpretation in Dubois?
This distinction between the use of the accused’s prior testimony for the purpose of impeaching their
credibility and the purpose of incriminating them makes sense on the face of s. 13, which says that selfincriminating evidence cannot be used to incriminate someone; but it does not say that it cannot be used
against you at all
o So cannot use the evidence for matters of primary materiality (building blocks of the offence), but can
use it for matters of secondary materiality (credibility, to show your testimony is not worthy of belief)
Problems with this approach:
o It’s almost impossible for juries to distinguish between using the accused’s own confession on the stand
to impeach their credibility, but not to incriminate them
o With the Noel approach, s. 13 could be protecting people’s ability to lie on the stand
o


This case outlines the totally new approach taken by the court to s. 13:
R. v. Henry (& Riley) (SCC 2005)
Facts: In the course of ripping off a marijuana grow-op, H&R killed the person guarding it by winding 24 feet of
duct tape around his head. They acknowledged their involvement, and the issue at trial was whether they had the
intent for manslaughter or murder. At their first trial, both testified. Riley said he didn’t know what happened;
Henry said he was drunk. At their second trial, both testified again. Riley said he lied at the first trial; he now
remembered what happened and said he wasn’t in the room when the fatal duct-taping took place. Henry said he
had no recollection of the entire thing. The Crown cross-examined both of the accused on their testimony given
at their prior trial for the purpose of impeaching their credibility (Kuldip). The defence argued it was having an
incriminating effect (Noel).
Issue: Was the Crown permitted to cross-examine the accused on their prior testimony given at their first trial? If
so, for what purpose? Holding: Yes, for credibility OR incrimination.
Reasoning (Binnie J):
 The distinction between credibility and incrimination in this context is troublesome; everyone is sceptical
that the trier of fact can actually isolate the purpose of impeaching credibility from that of incrimination
o So how to solve this problem?
 A consistent theme in the s. 13 jurisprudence is that the purpose of s. 13 is to protect individuals from
being indirectly compelled to incriminate themselves
o s. 5 and s. 13 represent a quid pro quo: when a witness who is compelled to give evidence in court is
exposed to the risk of self-incrimination, the state offers protection against the subsequent use of that
evidence against the witness in exchange for his or her full and frank testimony
s. 13 Jurisprudence and Whether or Not it Should Continue to be Followed
 Dubois: an accused who testifies at his first trial cannot have that testimony brought as evidence in a second
trial where he does not testify. “Other proceedings” includes a retrial on the same indictment; the term
“witness” applies to accused voluntarily testifying in his own defence
o Upheld for accused who don’t testify in the second trial.
 Mannion: accused who testifies at his first AND second trial, but changes his story, CANNOT be crossexamined on his prior testimony for the purpose of incriminating him.
o Should not be followed. The accused was never compelled to testify at any point. Section 13 should
offer him no protection, because is just permitting him to mislead the jury.
 Kuldip: accused who testifies at his first AND second trial, but changes his story, CAN be cross-examined
on his prior testimony for the purpose of impeaching his credibility
o The limit on the purpose for which the accused can be cross-examined is no longer to be followed. If
the contradiction between the two sets of testimony gives rise to an inference of guilt, s. 13 of the
Charter does not preclude the trier of fact from drawing the common sense inference
 Noel: a witness who was compelled to testify at a previous proceeding (where they are not the accused) who
is then charged and testifies at their own trial CANNOT be cross-examined on their prior testimony in any
way that would have an incriminating effect
o This should be affirmed, and expanded. A witness who was compelled at the first proceeding and is the
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accused in the second proceeding should not have their first testimony used for any reason
(impeachment of credibility OR incrimination).
 The result: the accused will lose their advantage in relation to prior volunteered testimony but his or her
protection against the use of prior compelled testimony is strengthened.
Ratio: See below.
Klein on Henry:
 The whole Noel/Kuldip distinction between credibility impeachment and incrimination is out
 The new relevant distinction is whether someone was compelled to testify or whether they volunteered to
testify at the first proceeding
 The reasoning is that someone who takes the stand voluntarily isn’t forced to incriminate themselves, they
do so freely – so they do not get protection from s. 13
 None of this is evident on the face of s. 13 – but the court is trying to avoid giving people constitutional
protection for lying on the stand
The Protection s. 13 Offers Now (Henry):
1. If the accused does not testify at his trial, his testimony from an earlier proceeding cannot be
used against him for any reason at trial, regardless of whether he was an accused or a mere witness
in the earlier trial. (e.g. Dubois).
2. If the accused does testify at his trial, his testimony from an earlier proceeding cannot be used
against him for any reason at that trial if he was compellable at that earlier proceeding (e.g. Noël)
3. If the accused does testify at his trial, his testimony from an earlier proceeding can be used to
cross-examine him at trial provided that he was NOT compellable at the earlier proceeding (either
for the purpose of impeaching his credibility or incriminating him).
VI. COMPETENCY AND COMPELLABILITY OF WITNESSES



The general rule in common law trials is that the parties must prove or disprove all facts in issue through the
oral (viva voce) evidence of witnesses
o Applies not only to facts directly observed by witnesses, but also to physical and documentary evidence
In order to testify, a witness must be competent and must either swear an oath to tell the truth or satisfy one
of the statutory substitutes for an oath
At common law, the parties, their spouses, convicted felons, and people who did not believe in God were not
permitted to testify – their testimony was considered inherently unreliable
o These testimonial disabilities have been either completely or partially removed by statute
o See ss. 3, 4 CEA.
A. THE ACCUSED’S COMPETENCE TO TESTIFY
This case is a bit of an outlier in this section – it’s more about the privilege against self-incrimination. However,
since it deals with s. 4 CEA and the consequences of making the accused competent to testify, it will be put here:
R. v. Noble (1997 SCC)
Facts: N was charged with break and enter and possession of instruments of crime. He did not testify at his trial,
where the primary issue was identification.
Issue: Can the accused’s failure to testify at trial be used by the trier of fact in arriving at its belief in guilt
beyond a reasonable doubt? Holding: No.
Reasoning (Sopinka J + 4):
 It is plain that the accused has a right not to testify at trial. This silence cannot be used against the accused at
trial, in virtue of the right to silence and the presumption of innocence
 Both the right to silence and the presumption of innocence mean that the accused cannot be conscripted to
bear any of the Crown’s burden of proof, with words OR silence. If a negative inference is drawn from the
accused’s silence, then they are being forced to help establish the case against themselves!
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
Such a rule would also place an accused in the position of being damned if they do, damned if they don’t (if
they aren’t willing to perjure themselves):
o If the accused is guilty, and testifies, they can be convicted on the basis of their testimony
o If the accused is guilty, and chooses not to testify, the failure to do so would place them in the same
position as if they had testified and admitted their guilt
o This is tantamount to conscripting self-incriminating evidence from the accused
 The silence of the accused may be used by the trier of fact to assess the Crown’s evidence on its own terms,
without the need to consider alternate explanations put forward by the accused. But cannot help to push the
Crown’s evidence to proof beyond a reasonable doubt of guilt
 Whether the trier of fact is a judge alone or jury makes no difference to the application of this principle
o But in practice, there is a problem in that s. 4(6) CEA prohibits the TJ from commenting on the failure
of the accused to testify – so is prevented from instructing the jury on the impermissibility of using the
accused’s silence against them
o And since juries do not give reasons, cannot know if they used the accused’s silence impermissibly
o So the jury cannot be cautioned against such an inference ex ante, and they cannot be reversed ex post
for drawing such an inference
 But the constitutionality of s. 4(6) is not in issue. In any case, defence counsel CAN make a comment on the
accused’s failure to testify, and say that it cannot be held against them.
 In the context of an alibi, the accused’s failure to testify (and submit to cross-examination) may lead to a
negative inference on the credibility of the defence. This does not help the Crown discharge their burden of
proof, however.
Ratio: The trier of fact cannot draw an adverse inference from the accused’s failure to testify and protest their
innocence.
Klein on Noble:
 At common law, accused was incompetent to testify in their own defence. Statute changed this. But statute
also added s. 4(6) CEA to say that no comment can be made on the accused’s choice NOT to testify. This is
rooted in the presumption of innocence: we don’t want their behaviour to be conscripted against them to
convict them.
o But the question remains: can the judge/jury still draw an adverse inference against an accused who
fails to testify?
o Court says no: not only can the judge not comment on the accused’s failure to testify (under s. 4(6)), but
their failure to testify cannot be held against the accused in any way
 The accused’s silence cannot be one of the things that helps establish proof beyond a reasonable doubt
o It can’t give “that little extra push”
 The problem is that there is no way of directing how the trier of fact uses the accused’s failure to testify,
because cannot comment on it! This is really a problem with juries.
o But defence counsel CAN comment on it and direct jury not to hold accused’s failure to testify against
them; but judge is not allowed to give that jury instruction. Can nod vigorously as defence counsel
gives jury that direction, though.
 If the accused fails to testify in relation to an alibi, that CAN be held against them
B. SPOUSAL INCOMPETENCY
Remember, spousal incompetency impedes the truth-seeking goals of the court. The rule keeps evidence from the
jury in light of policy objective of protecting marital harmony.
This is the statute that alters the common law inability of the accused to testify at their trial, as well as spousal
incompetency (but does not get rid of the latter completely):
Accused and spouse
s. 4 CEA
(1) Every person charged with an offence, and, except as otherwise provided in this section, the wife or
husband, as the case may be, of the person so charged, is a competent witness for the defence, whether
the person so charged is charged solely or jointly with any other person.
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Accused and spouse
(2) The wife or husband of a person charged with an offence under subsection 136(1) of the Youth
Criminal Justice Act or with an offence under any of sections 151, 152, 153, 155 or 159, subsection 160(2)
or (3), or sections 170 to 173, 179, 212, 215, 218, 271 to 273, 280 to 283, 291 to 294 or 329 of the Criminal
Code, or an attempt to commit any such offence, is a competent and compellable witness for the
prosecution without the consent of the person charged.
Communications during marriage
(3) No husband is compellable to disclose any communication made to him by his wife during their
marriage, and no wife is compellable to disclose any communication made to her by her husband during
their marriage.
Offences against young persons
(4) The wife or husband of a person charged with an offence against any of sections 220, 221, 235, 236, 237,
239, 240, 266, 267, 268 or 269 of the Criminal Code where the complainant or victim is under the age of
fourteen years is a competent and compellable witness for the prosecution without the consent of the person
charged.
Saving
(5) Nothing in this section affects a case where the wife or husband of a person charged with an offence may
at common law be called as a witness without the consent of that person.
Failure to testify
(6) The failure of the person charged, or of the wife or husband of that person, to testify shall not be made
the subject of comment by the judge or by counsel for the prosecution.
Note that only spouses, no other family members, are exempt from testifying.

Section 4 does not make the spouse a competent witness for the prosecution. S/he remains incompetent for
the prosecution unless the offence charged falls within one of the listed exceptions
Who is a spouse?
R. v. Salituro (1991 SCC)
Facts: Mr. S forged his wife’s signature on a cheque. Mr. and Mrs. S are separated without reasonable
possibility of reconciliation. Mrs. S testified at trial and Mr. S was convicted; he argued on appeal that she was
incompetent to testify.
Issue: Is there a common law exception to the rule against spousal incompetence for spouses that are separated
without any reasonable possibility of reconciliation? Holding: Yes.
Reasoning (Iacobucci J):
 The spousal incompetency rule is more a product of history than the reflection of any clear policy decision
 Originally, a wife’s legal personality was absorbed into her husband’s upon marriage, so she could not
testify against him. Also, it was thought that husband and wife’s interests were identical.
 Nowadays, the most important justification for the rule is that it protects marital harmony. There is also a
“natural repugnance” to compelling a wife or husband to be the means of the other’s condemnation
 Today, the rule is inconsistent with respect for personal freedom; there is a conflict between the freedom of a
person to choose whether or not to testify and the social interest in protecting the marital bond
 Where spouses are irreconcilably separated, there is no marriage bond to protect and we are faced only with
a rule that limits the capacity of the individual to testify – this is unacceptable in the age of the Charter
o Society can have no interest in preserving marital harmony where spouses are irreconcilably separated
because there is no marital harmony to be preserved
 Making a separated spouse a competent witness for the prosecution may ultimately mean they are also
compellable by the prosecution (this case does not have to decide)
Ratio: Irreconcilably separated spouses are competent to testify against each other.
Klein on Salituro:
 The court here acknowledges that the law has some role in protecting marital harmony
 But narrows the spousal incompetency rule
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Common law couples are not considered spouses for the purposes of the spousal incompetency rule as yet
(but may have to be reconsidered in light of some s. 15 jurisprudence making marital status an analogous
ground for discrimination)
At common law, a witness who is competent is also compellable. The exceptions to spousal incompetency in
s. 4 specify that the spouse is also compellable. We do not know if competence implies compellability all the
time or not.
R. v. Couture (2007 SCC)
Facts: In 1989, while in prison serving a sentence for unrelated offences, C confessed to his prison counsellor
that he killed two women (his girlfriend and her friend) in 1986. Upon C’s release, he ended up marrying this
prison counsellor, Darlene (now Mrs. C). While they were having marital troubles (because of C’s abuse of
Darlene), she gave two statements to the police relating C’s confession to the two murders. They reconciled
shortly thereafter. At the time of C’s trial for the two murders, their marriage was valid and subsisting.
Issue: Are Mrs. C’s out-of-court statements admissible under the principled exception to the hearsay rule?
Holding: No, with dissent.
Reasoning:
Majority (Charron J + 4):
The Law Respecting Spousal Testimony
 At common law, accused persons and their spouses were not competent to testify in criminal cases (except in
cases that involved the witness spouse’s person, liberty, health)
 This has been modified by statute – s. 4 of the Canada Evidence Act
o This statute implicitly preserves the common law, subject to the exceptions it creates in (2) and (4)
o (1) Accused/spouse both competent to testify for defence. Spouse may/may not be compellable for the
defence. Assume that they are for the purposes of this decision, because it is well-established at
common law that a competent witness is also a compellable witness.
o (3) Privilege for marital communications. The holder of the privilege is recipient of the communications
– and they can waive it
 First justification for the spousal incompetency rule: promotes conjugal confidence/protects marital harmony
 Second justification: prevents the indignity of conscripting an accused’s spouse to participate in their
prosecution – is “naturally repugnant” and a humiliating “spectacle”
 There is consensus that these rules should be changed, but none as to how: should the spouse be given
choice to testify or not? Should the spouse always be compelled to testify, subject to TJ’s exemption?
o SCC has held that the Legislature should be responsible for changing this longstanding rule, not courts
R. v. Hawkins
 The accused’s girlfriend testified against him at his preliminary inquiry. They got married between the
prelim and the trial, thus rendering her incompetent to testify. The court held her prelim testimony could be
read in by the Crown at trial (with dissent) because this would not undermine the rationale for the spousal
incompetency rule
o Dissent said that spouse’s out-of-court statements could be assessed under TJ’s residual discretion to
exclude evidence whose PV is outweighed by PE (in this case, unfairness to the accused)
 The Crown’s position: this ruling binds the Court in this case, saying that the spousal incompetency rule
does not apply to spouse’s out-of-court statements
 The defence position: the application of this ruling to the present scenario would create sweeping changes to
spousal incompetency rule – police could make a regular practice of taking spouses’ statements to tender
them as hearsay at the trial (and the spousal incompetency rule would always fulfil necessity requirement)
Analysis
 The spousal incompetency rule should not be undermined by the application of the principled exception to
hearsay – the rules have different goals
o Hearsay rules go to reliability, the truth-seeking function of the court
o Spousal incompetency rules, as a form of privilege, go to broader social interests (marital harmony)
 This is also why spouse’s statements should not be assessed under PV/PE rubric – they are not
excluded because they lack probative value. Are excluded for policy reasons.
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
While the spousal incompetency rule is testimonial in nature and only prevents a spouse from testifying
against the accused spouse, its underlying rationales – particularly the preservation of marital harmony and
conscripting the spouse against the accused – necessarily extend beyond the trial itself.
 The taking of a statement by the police for the express purpose of introducing it in evidence against the
declarant’s spouse raises concerns about the spousal incompetency rule and its underlying purposes
o Agreement with defence that this would create a new, widespread practice that would completely undo
spousal privilege
Dissent (Rothstein J + 3):
 The ruling in Hawkins covers the situation at bar. If the evidence passes the necessity/reliability
requirements, the spousal incompetency rule can be considered at the residual discretion stage.
 “A trial is primarily a truth-seeking inquiry”
Ratio: Spousal incompetency is actually broadened in this case to cover out-of-court statements made by the
spouse during the marriage to police.
Klein on Couture:
 This case supports the spousal incompetency rule and extends it to out-of-court statements
 The Crown is trying to get the wife’s statement in under the principled approach to hearsay; the Court says
you can’t get around this common law rule with KGB.
 The court is worried about betrayal; forcing a spouse to betray the confidences of their significant other
C. GENERAL COMPETENCE OF WITNESSES
Competence of Witnesses Over 14 Whose Mental Capacity is Challenged

People over 14 are presumed to be competent to testify, but their mental capacity can be challenged
s. 16 CEA

Witness whose capacity is in question
(1) If a proposed witness is a person of fourteen years of age or older whose mental capacity is
challenged, the court shall, before permitting the person to give evidence, conduct an inquiry to determine
(a) whether the person understands the nature of an oath or a solemn affirmation; and
(b) whether the person is able to communicate the evidence.
Testimony under oath or solemn affirmation
(2) A person referred to in subsection (1) who understands the nature of an oath or a solemn affirmation and
is able to communicate the evidence shall testify under oath or solemn affirmation.
Testimony on promise to tell truth
(3) A person referred to in subsection (1) who does not understand the nature of an oath or a solemn
affirmation but is able to communicate the evidence may, notwithstanding any provision of any Act
requiring an oath or a solemn affirmation, testify on promising to tell the truth.
Inability to testify
(4) A person referred to in subsection (1) who neither understands the nature of an oath or a solemn
affirmation nor is able to communicate the evidence shall not testify.
Burden as to capacity of witness
(5) A party who challenges the mental capacity of a proposed witness of fourteen years of age or more has
the burden of satisfying the court that there is an issue as to the capacity of the proposed witness to testify
under an oath or a solemn affirmation.
Two questions to ask to determine if a person over fourteen has the mental capacity to testify (s 16(1)):
o Can the person understand an oath/solemn affirmation?
 This asks whether we can get a hold of the person’s conscience
 R. v. Leonard (1990): swearing a solemn affirmation means the person understands the solemnity
of the occasion, the importance of telling the truth, above and beyond the regular moral imperative
to be honest
o Can the person communicate the evidence? See Marquard.
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Note that the old s. 16 referred both to persons over 14 whose mental capacities were challenged AND to
children. However, the CEA was amended so that s. 16 only applies to witnesses over 14 whose mental
capacities are challenged, and s. 16.1 was enacted to specifically apply to children (witnesses under 14)
Note that this case is about a child witness. However, in light of the amendments to the CEA embodied in s. 16.1,
which adopt L’Heureux-Dubé’s dissent for child witnesses, it only applies to witnesses over 14 whose mental
capacities are challenged. It interprets what it means to be able to “communicate the evidence” (s. 16(1)(b)):
R. v. Marquard (1993 SCC) [Reprise]
Facts: M is charged with pressing her granddaughter’s face against a burning hot stove in order to discipline her.
M’s story is that her granddaughter burned herself with a butane lighter. When they arrived at the hospital, the
victim said she burnt herself with a lighter, but later changed her story and said “nanny put me on the stove”
(eaaarrgh). The child testified at trial to the same thing. M is appealing based on an argument that the TJ’s
inquiry into the child’s ability to “communicate the evidence” was inadequate.
Issue: What is the necessary inquiry into a witness’s ability to communicate the evidence under s. 16(1)(b)?
Reasoning:
Majority (McLachlin J + 5):
 General testimonial competence comprehends:
o 1. The capacity to observe (and interpret) – is the witness capable of observing what was happening?
o 2. The capacity to recollect – is s/he capable of remembering what s/he observes?
o 3. The capacity to communicate – can s/he communicate what s/he remembers?
o This capacity should be assessed at the time of trial
 The inquiry is into the capacity to perceive, recollect, and communicate, not whether the witness actually
perceived, recollects, and can communicate about the events in question
o Any defects in the ability to perceive/recollect/recount the events in question at the trial should be dealt
with at the stage of cross-examination and the weight to be given to the evidence, not admissibility
 The phrase “communicate the evidence” means more than mere verbal ability – it includes the general test
for testimonial competence, which outlines the basic abilities individuals need to be able to testify
o All that is required is the basic ability to perceive, remember, and communicate
Dissent (L’Heureux-Dubé J):
 The majority’s approach raises the bar for the reception of child testimony and testimony of persons with
mental disabilities – reinstates the presumption of the unreliability of this evidence, which has been rejected
in the case law (Khan)
 We now accept that juries are competent to assess the evidence and credibility of all categories of witnesses
o So the practice is increasingly to admit the evidence and let the jury weigh it
 A number of concerns preceded the reform of the rules governing the reception of children’s evidence:
o 1. Prevalence of child sexual abuse (as well as abuse of handicapped persons)
o 2. Perception that the law of evidence constituted a significant impediment to obtaining convictions in
cases of child sexual abuse
o Research also indicates that the worries over children’s evidence are largely unfounded
 LHD’s approach to s. 16(1)(b): once the child’s ability to communicate, understood as the ability to respond
to questions, has been established, any limitations because of deficiencies in recollection or perception go to
weight rather than admissibility
o Limiting the inquiry to the witness’s ability to understand and respond to questions has the benefit of
simplicity and ease of determination, which will ensure consistency and predictability of admissibility
of children’s evidence
Ratio: Persons over the age of 14 whose mental capacity is challenged in the context of competence must be
able “to communicate the evidence”, which means they must have the capacity, at the time of trial, to perceive,
recollect, and communicate about events.
Klein on Marquard:
 Can Debbie-Ann communicate the evidence?
 Two positions:
o McLachlin J (“intermediate” position): is the child, at time of trial, able to perceive the events, recall
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them, and communicate the answers to questions.
 Testimonial competence means we have to ask about her CAPACITY to observe, recollect,
communicate the event; not whether she ACTUALLY did observe and recollect the event
 If she had the ability to perceive correctly, she’s competent
 If she lacked that ability altogether, then we would say she’s not competent
 We will ask her whether she ACTUALLY did observe and recollect the events in an attempt to
weigh her evidence
o L’Heureux-Dubé J: all the legislation says is the witness needs to be able to communicate.
 We should not ask whether she has the capacity to recollect/observe; we’re only going to ask
whether she has the capacity to communicate the evidence. Parliament is tending towards greater
admissibility of children’s evidence (for example, removed the need for corroboration).
 Everything now goes to weight (this is a theme of the course  admissibility v. weight: just
because we’re letting evidence in, does not mean anyone is going to rely on it)
 Just because Debbie-Ann might not be able to recollect perfectly – does not mean she should be
incompetent to testify. Defence can still make the argument that she should not be believed; and
jury doesn’t have to believe her.
LHD’s defence was essentially adopted in s. 16.1, which was enacted in 2006. Question to ask: can they
understand and respond to questions?
Marquard is STILL CITED for determining the competency of people ABOVE 14 with mental disabilities
Parliament could have included mentally disabled individuals (above 14) in 16.1 – but they didn’t
So we treat adults with disabilities under the old test: are they able to communicate the evidence? And do
they have the capacity to observe or recollect the events?
Competence of Witnesses Under 14 (Child Witnesses)
This is the legislation adopting LHD’s dissent in Marquard for the competence of child witnesses:
Person under fourteen years of age
s. 16.1
(1) A person under fourteen years of age is presumed to have the capacity to testify.
CEA
No oath or solemn affirmation
(2) A proposed witness under fourteen years of age shall not take an oath or make a solemn affirmation
despite a provision of any Act that requires an oath or a solemn affirmation.
Evidence shall be received
(3) The evidence of a proposed witness under fourteen years of age shall be received if they are able to
understand and respond to questions.
Burden as to capacity of witness
(4) A party who challenges the capacity of a proposed witness under fourteen years of age has the burden of
satisfying the court that there is an issue as to the capacity of the proposed witness to understand and
respond to questions.
Court inquiry
(5) If the court is satisfied that there is an issue as to the capacity of a proposed witness under fourteen years
of age to understand and respond to questions, it shall, before permitting them to give evidence, conduct an
inquiry to determine whether they are able to understand and respond to questions.
Promise to tell truth
(6) The court shall, before permitting a proposed witness under fourteen years of age to give evidence,
require them to promise to tell the truth.
Understanding of promise
(7) No proposed witness under fourteen years of age shall be asked any questions regarding their
understanding of the nature of the promise to tell the truth for the purpose of determining whether
their evidence shall be received by the court. [i.e. can be asked and answers can be used for weight]
Effect
(8) For greater certainty, if the evidence of a witness under fourteen years of age is received by the court, it
shall have the same effect as if it were taken under oath.

Children only have to be able to understand and respond to questions in order to testify
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Before they testify, they have to promise to tell the truth
They can be asked if they know what it means to tell the truth, but only for the purposes of evaluating what
weight should be given to their evidence, not for the purposes of admissibility
VII. OPINION EVIDENCE




Opinion evidence is generally inadmissible
The role of witnesses is to testify to the facts of which they have personal knowledge
o The witnesses’ opinions on those facts are generally irrelevant, and thus inadmissible
It is the trier of fact’s responsibility to assess the evidence, decide what facts have been established, and to
determine what inferences – if any – should be drawn from the evidence
o Witnesses give the trier of fact the raw materials with which they form opinions
Two exceptions to the rule excluding opinion evidence:
o 1. Lay witnesses can communicate their perceptions in the form of opinions when the matters are:
 a. Within common knowledge
 ex. speed, physical or emotional state
 b. Based on multiple perceptions that can best be communicated in a compendious format
 ex. age, identity
o 2. Expert witnesses can help the trier of fact draw inferences from facts that the trier of fact cannot
assess using their ordinary experience
A. LAY OPINION EVIDENCE
When can a lay witness give their opinion?
R. v. Graat (1982 SCC)
Facts: 2 police officers saw Mr. Graat driving erratically and pulled him over; he smelled of alcohol, had
bloodshot eyes, was staggering, etc; no opportunity to do a breathalyzer. G was charged with drunk driving. At
trial, three police officers testified that they thought G was too drunk to drive. Appeal by accused to exclude
such evidence as inadmissible because it constitutes opinion.
Issue: Can the court admit opinion evidence on the very question to be decided? Holding: Yes.
Reasoning (Dickson J.):
 2 categories of opinion evidence have traditionally been admissible:
1. Cases calling for expert testimony
2. Non-expert opinion on matter requiring no special knowledge, where it is virtually impossible to
separate witness’ inference from the facts on which the inference is based
 Examples of matters on which lay witnesses can give opinions: handwriting ID, apparent age, bodily
condition of people, emotional states of people, condition of things, estimates of speed and distance
 Note that the line between fact and opinion is not clear
 To resolve the question before the court, return to broad principles of admissibility: they are 1) Relevance
and 2) Exclusion on basis of law or policy
 No reason in principle, policy, or common sense why a lay witness should not be permitted to testify in the
form of an opinion if, by doing so, he is able to more accurately express the facts he perceived
o i.e. when “the facts from which a witness received an impression were too evanescent in their
nature to be recollected, or too complicated to be separately and distinctly narrated”  then a
witness can state his opinion instead of the facts on which it was based
 Note that a non-expert witness can only give their opinion about facts; not about legal standards applied to
facts (cannot say, for example, that they thought the defendant was negligent)
Ratio: Opinion evidence on ultimate facts in issue is acceptable if the facts on which an observation is based are
too complicated to be narrated separately and distinctly.
Klein on Graat:
 Laypeople can give their opinions where they represent conclusions that ordinary people are able to make,
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the witness is in a better position to draw the conclusion than the trier of fact, and the conclusion is “a
compendious statement of the facts”
o In this case, PO was able to give an opinion that the accused was drunk, too drunk to operate a motor
vehicle
o These are pretty ordinary experiences (drunkenness, what faculties are required in order to drive)
Court attributes nothing to the fact that witness in this case is a PO, who deals with drunk drivers all the time
o Because that would require treating the PO as an expert witness
o Isn’t there a chance that the jury will treat him as an expert? Should we put him under the expert
opinion regime because of this risk?
This test gets at probative value v. prejudicial effect – is it more helpful to have the witness draw the
conclusion or is it more hurtful?
B. EXPERT OPINION EVIDENCE
The criteria for the admissibility of expert opinion evidence:
R. v. Mohan (1994 SCC) [Reprise]
Issue: What are the requirements for the admissibility of expert opinion evidence?
Reasoning (Sopinka J.):
1. Relevance (general admissibility criterion)
 Relevance is a threshold requirement for the admissibility of all evidence; is a question of law and is to be
decided by the judge
 Evidence is prima facie admissible if it is so related to a fact in issue that it tends to establish it  but this is
not the end of the inquiry
 Must ask whether the value of the evidence is worth what it costs (step 3)  better dealt with under general
exclusionary rule for evidence which is prejudicial, time-wasting, misleading (etc)
o There is danger that expert evidence will be given more weight than it is due by the jury  must be
considered whether the jury will be confused/overborne by expert opinion when deciding whether or
not to admit it
2. Necessity for assistance to the trier of fact (admissibility criterion for expert opinion)
 Expert’s function: to provide the judge and jury with a ready-made inference which the judge and
jury, due to the technical nature of the facts, is unable to formulate
o The standard is not whether the expert opinion is “helpful” to the trier of fact
o The standard is whether the expert opinion is “necessary” – i.e. it provides information which
is likely outside the experience/knowledge of judge/jury
 Too liberal an approach to admitting expert opinion risks making a trial nothing more than a contest
of experts, with trier of fact acting as a referee
3. Absence of Any Exclusionary Rule (general admissibility criterion)
 This would be where I would conduct the PV v. PE assessment
4. A Properly Qualified Expert (admissibility criterion for expert opinion)
 Evidence must be given by a witness who is shown to have acquired special or peculiar knowledge through
study or experience in respect of the matters on which they testify
Klein on Mohan:
 The concern, on the facts of this case, is that the science the “expert” was proposing was not that credible –
there was no established profile for a doctor that commits sexual assaults on girls. So the concern of the
court was with “junk science”
 This reliability issue comes up in a strange place – in Sopinka’s requirement for relevance. He includes the
PV v. PE balancing under “relevance”, whereas it’s usually its own step in the analysis
o He says that one prejudicial effect we should be watching out for is evidence whose probative value is
outweighed by its lack of reliability.
 At the necessity stage, Sopinka J also discusses whether expert opinion is allowed on the ultimate issue (see
Marquard for an example where it was not allowed). This should not be the guiding factor – should simply
ask if the inference which the jury needs to make from the facts is one for which they need an expert or not
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When is expert evidence necessary? Sometimes it can be the basis for challenging questionable assumptions
about human nature that have become imbedded in common perceptions.
R. v. Lavallee (1990 SCC)
Facts: L was battered by the victim for four years. During a party at their house, he gave her a gun and said he
would kill her if she didn’t kill him. He turned around, and she shot him in the back of the head.
Issue: Is evidence of “battered woman syndrome” admissible at trial? Holding: Yes.
Reasoning (Wilson J.):
 Dr. Fred Shane, a psychiatrist with extensive experience with battered women, prepared an expert report on
L after meeting with her several times, reading the police reports, etc. He testified to its effect at trial.
 Psychiatric testimony falls within the realm of expert testimony. Its admissibility is predicated on the
realization that in some circumstances, the average person may not have sufficient knowledge of human
behaviour to draw an appropriate inference from the facts before them
o The need for expert evidence about human behaviour is sometimes obfuscated by the idea that judges
and juries are their own experts on human nature
 Expert evidence on the psychological effect of battering on wives/common law partners is relevant and
necessary in cases such as the one at bar. How can the mental state of the accused be appreciated without it?
 The battering relationship is subject to many myths/stereotypes (woman can leave, if she doesn’t, the abuse
is not that bad or she enjoys it)  expert evidence can help dispel these in the judge/jury
 Two aspects of s. 34(2) must be considered in light of the expert evidence:
o 1. Reasonable Apprehension of Death (s. 34(2)(a))
 People often assume that it’s inherently unreasonable to apprehend death until the physical
assault is underway, at which point the victim can gauge the requisite amount of force required
to repel it
 In a domestic violence context, effect of ongoing violence on the accused has to be taken into
account – the cyclical nature of the violence means battered woman knows when it is coming
again and can detect changes in the pattern which indicate this time is life-threatening
 The expert evidence can help the jury in determining whether the accused had a
reasonable apprehension of death when she acted by explaining the heightened sensitivity
of the battered woman to her partner’s acts
 Without such expert testimony, it is unlikely the average fact-finder would be able
to appreciate why the accused’s subjective fear may have been reasonable in the
context of the relationship
o 2. Lack of Alternatives to Self Help (s. 34(2)(b))
 There has to be no other way to save oneself to make a claim for self-defence – but battered
woman could always leave, no? Court says this reasoning is mistaken
 There are many reasons why women do not leave abusive partners: psychological barriers, lack
of job skills, children, etc – need expert testimony to tell us about them
 See page 296 for a summary of the uses of expert testimony in cases of battered women’s syndrome
Ratio: Expert evidence on battered women’s psychological state is admissible on the issue of her acting in selfdefence when she killed her abuser.
Klein on Lavallee:

The accused’s action may have been reasonable in the circumstances. But the jury won’t be able to
assess that if they don’t understand the circumstances she’s facing.

Normally juries are considered to be experts of human behaviour and to know what’s reasonable – but
not in this case

Lavallee was determined to be able understand the situation with Rust in a way that an ordinary person
would not. She could perceive his behavioural cues. Jury might not be aware these cues exist

Wilson explains that reasonable behaviour is contextual! Question is not what the reasonable man would
feel in her circumstance, but what the reasonable woman in this cycle of violence would perceive (which
is not the same as what the ordinary person would perceive)

This judgment takes seriously the legislation talking about reasonableness of a person’s belief, and
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doesn’t allow for stereotyping re: what is and isn’t reasonable behaviour. Seeks to inform the jury about
things they would not otherwise know about the reasonableness of behaviours
Concern about expert evidence usurping jury’s function addressed through jury instruction here
R. v. Trochym (2007 SCC)
Facts: T is accused of murdering his girlfriend, Donna Hunter, in 1992. She was last seen alive on Tuesday,
October 13. The essential evidence is that of Hunter’s neighbour, Gity Haghnegahdar. She testified she heard a
man banging on Hunter’s door late on Tuesday. She also testified that she saw T leave Hunter’s apartment on
Wednesday afternoon. This was essential to the Crown’s case, because their theory was that T killed Hunter late
on Tuesday, left her apartment, and then came back on Wednesday to stage the scene to make the murder look
random (this is consistent with forensic evidence that Hunter died, and then her body was subsequently moved
12 hours later). Others saw the accused at the apartment building on Wednesday, but T claimed that he had just
returned to get his car from the garage. The big problem in this case is that GH originally told the police that she
saw T leave Hunter’s apartment on Thursday, not Wednesday. She changed her story after being subjected to
hypnosis to aid in her memory retrieval. The jurors were not informed that GH had been hypnotized or that her
story changed thereafter. T was convicted at trial and appeals on the basis that the post-hypnosis evidence was
wrongly admitted.
Issue: Should the post-hypnotic evidence have been admitted? Holding: No, with dissent.
Reasoning:
Majority (Deschamps J + 4):
 The court’s framework for assessing novel science ensures that only scientific opinions based on a reliable
foundation are put to the trier of fact
o The court performs a “gatekeeper” function which is as important when facts extracted through the use
of a scientific technique are put to the jury as when an expert opinion based on a scientific technique is
put to the jury
 The TJ found the evidence to be reliable enough on the basis of the Clark guidelines which tell a hypnotist
how to conduct the interview so as to make sure the witness’s testimony isn’t tainted by suggestions
(hypnotist must be a qualified professional, independent of the parties, with minimal info necessary to
conduct interview, interview recorded, only hypnotist and subject present, conduct medical history, ask for
pre-hypnosis rendition of facts, make sure to give no info to subject)
o These guidelines are problematic because they are based on an assumption that the underlying science
of hypnosis is reliable in the context of judicial proceedings
o “Reliability is an essential component of admissibility … evidence that is not sufficiently reliable is
likely to undermine the fundamental fairness of the criminal process”
o The reliability of the post-hypnosis memories cannot be assessed without inquiring into the reliability of
the scientific technique that enabled them to arise
 J-LJ sets out the test for a party wishing to rely on novel scientific evidence – tells us if the evidence is
reliable enough to be admitted. Helps address Mohan concern that expert evidence will unduly impress jury.
o 1. Has the technique or can the technique be tested?
o 2. Has the technique been subject to peer review and publication?
o 3. What is the known or potential rate of error?
o 4. Is the theory or technique generally accepted?
 In this case: 1. The accuracy/effect of hypnosis is difficult to assess. Science does not have a solid
understanding of the construction of memory. 2. The use of hypnosis in legal context has been commented
upon a lot; its weaknesses are well-known, and opinion differs on the extent of their impact on testimony. 3.
The potential for error is fairly extreme: under hypnosis, people risk making up memories, are very
amenable to suggestion, may create inaccurate details, tend towards “memory-hardening”. 4. The technique
is not generally accepted.
o Conclusion: post-hypnosis testimony is not sufficiently reliable to be used in a court of law. It cannot be
tested by cross-examination, because of memory hardening (witness believes they remember it)
 A TJ cannot admit evidence that was covered during a hypnosis session, even if the witness’s story didn’t
change in light of the hypnosis (!)
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
A TJ can allow a witness to testify on matters not covered during a hypnosis session, subject to its PV
outweighing its PE, and to a jury instruction on its possible unreliability.
Concurrence (Charron J):
 The TJ should have the discretion to admit post-hypnosis memory that was covered during the hypnosis
session where the witness’s story didn’t change
 It is in TJ’s discretion to require expert evidence to explain to jury dangers of such evidence, or whether it is
necessary to give a jury instruction on its reliability
Dissent (Bastarache J + 2):
 A general principle of criminal evidence law is that a just result in criminal trials is best achieved when the
decision maker has all relevant and probative information before him or her
 Appellate courts must have faith in intelligence/common sense of juries and in ability of TJs to charge juries
 The majority treats Mohan/JLJ as creating a very high standard for the admission of new science. This is not
an accurate description of the law, and hypnosis is not new
 “Hypnotically refreshed” evidence has been admissible in Canada for 30 years – any of its shortcomings can
be dealt with at the stage of assigning it weight
o A categorical exclusion was not warranted on the law, facts, or record of the case
 Post-hypnotic testimony suffers from very similar shortcomings to regular testimony – these potential
frailties of memory are those that we have always assumed juries are quite capable of weighing
 The upshot of the majority’s decision is that GH cannot testify to even having seen T on Thursday***
Ratio: Post-hypnotic evidence is not admissible.
Klein on Trochym:
 Policy concern of the court: protecting the accused from wrongful conviction
Majority Judgment
 Deschamps J notes that post-hypnosis evidence is presumptively inadmissible
 She then asks: is this evidence admissible in accordance with the test for novel scientific evidence?
o Post-hypnotic memories need to be shown to be sufficiently reliable in order to be admissible
 TJ erred in assuming that post-hypnosis evidence is admissible if Clark guidelines are followed
 Majority says the Clark guidelines are problematic in that they are based on an assumption that
the underlying science of hypnosis is itself reliable in the context of judicial proceedings (recall
importance of reliability in admissibility).
 Evidence that is not sufficiently reliable is likely to undermine the fundamental fairness of the
criminal process
 Court applies JLJ, which built on Mohan to develop test governing the admissibility of novel science. Party
wishing to rely on the evidence must first establish that the underlying science is sufficiently reliable.
 The court decides that this test applies to not only expert opinion, but testimony impacted by a novel
scientific process
 The conclusion is that post-hypnosis testimony does not satisfy the test for admissibility set out in JLJ,
due to reliability. Topics covered during the hypnosis session are not admissible, even if the hypnosis
brought about no change! Consistency doesn’t help.
Dissent
 Dissent cites Corbett re: faith in juries.
 The potential frailties of a post-hypnotic memory are the same as those plaguing regular memory, and juries
are good at weighing possible errors and influence with testimony based on regular memory.
 Also says that Mohan did not signify a departure from the common law rules relating to the admission of
opinion evidence. Just re-emphasized the need for courts to give special scrutiny to novel science on a case
by case basis (no higher threshold of reliability required for novel science)
 Decides courts cannot take judicial notice in the context of expert evidence (para 142), because experts are
often chosen to support the position of the party presenting them.
 Argues goal of court process is truth seeking, and a just result is best achieved when all relevant and
probative evidence is put before the jury. Argues for a case-by-case analysis for admissibility
Analysis
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Suzanne Amiel
Winter 2011
Note that this is not an expert evidence case! THERE IS NO EXPERT TESTIFYING! It is in this section
because it is about the use of an unproven, novel scientific technique
o This is NOT expert evidence, but evidence of a witness who has been ‘treated’ by an expert
Majority would keep out not only the memory changed after hypnosis, but any evidence discussed during
hypnosis. Can only admit what was not discussed during hypnosis.
o Charron (concurring) said that those memories unchanged would still be admissible
Dissent: upset that majority seemed to create an in/out test out of Mohan.
o Bastarache says Clark sets up a set of best practices/guidelines re: when posthypnotic evidence is
likely to be reliable. Clark tells you what to look at when assessing reliability.
o Would have dealt with this with jury instruction.
o Majority doesn’t do any cost/benefit analysis. This case runs against the grain of many of the cases
we’ve seen, where cost/benefit (probative strength of evidence) has replaced more check-list kinds of
tests like does this particular method have general acceptance. Bastarache says this is something better
put to the jury. Jury is able to weigh the strengths and weaknesses of post-hypnotic testimony
Klein wants to draw our attention to the strength of the presumption. While we have a general trend that we
should trust juries more, and more evidence should go to them, this is an example of less evidence going to
them. Creates a far more rigid rule of admissibility and exclusion.
IX. CONCLUSION
Key Goals of the Law of Evidence




The Search for Truth
o Ex. the rule against hearsay presumes that hearsay is more misleading than helpful
Fairness in the Trial Process
o The consequences to the accused are much more severe if they lose their case – they often, therefore,
get the benefit of the doubt
 Ex. can lead character evidence
o A strong example of the fairness to the accused is the privilege against self-incrimination
o The confusing thing is that “fairness” is sometimes linked to “truth-seeking” (i.e. it’s unfair to allow the
Crown to bring in excessively unreliable evidence)
o The principle of truth-seeking is getting a lot more airtime than fairness these days (again, see the
erosion of the privilege against self-incrimination)
Efficiency
o Ex. collateral facts bar
o Ex. the rule against oath-helping
Social Goals Outside of the Process
o Ex. spousal incompetency
o Ex. privilege
Trends in the Law of Evidence


Movement from rigid rules and categories to a more flexible, purposive, principled approach
o Hearsay
o Privilege (just because it’s flexible doesn’t mean it’s purposive, however)
o Similar fact evidence
o Witness competency
The greater admissibility of evidence
o Ex. Criminal records (Corbett), similar fact evidence (Handy), expert evidence (Lavallee)
o Reflects a greater trust in juries. Think about when they need instructions, help drawing inferences, and
when none of this will help and they just need evidence kept away from them.
o Some cases, however, do not seem to trust juries: ex. Trochym
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