Law 309: The Law of Evidence
G. Morgan (Foster, Spring 2013) | Page 1
Evidence Answer Framework
Assessing Evidence
Step
Identify the Type
of Evidence
General Rule
Framework
Exclusionary
Rules
Presumptively
Inadmissible
Principled
Approach
Statutory
Details
Evidence = the means by which an alleged matter of fact (material issue) is established or disproved
Types of evidence:
(1) direct evidence = relevance is clear therefore only need to evaluate testimonial capabilities of
witness (e.g., credibility, perception, memory)
(2) circumstantial evidence = relevance established by inference therefore evaluable testimonial
capabilities (e.g., whether the facts support the inference), and the reasoning process (e.g., whether
the inference can be reasonably drawn from the facts, if established)
All relevant evidence is admissible unless it is excluded by an exclusionary rule or principle (Watson,
Seaboyer)
(1) Is the evidence logically relevant?
(2) Is the evidence material (e.g., relevant to a legal issue in the case)?
(3) Is there a legal reason to exclude the evidence?
(4) Judge’s discretionary power to exclude: does the prejudicial effect of the evidence outweigh its
probative value?
Exclusionary rules are developed either to enhance the truth-seeking function by excluding unreliable or
prejudicial evidence or to protect some other value
Other policy reasons for exclusionary rules: unnecessarily prolong a trial or confuse issues; interfere with the
independence and impartiality of the trial process
Exclusionary Rules Based Unreliability and
Exclusionary Rules Based on Policy
Prejudicial Effects
 Hearsay
 Confessions
 Opinion Evidence (Lay & Expert)
 Privilege
 Prior Consistent Statements
 Prior Inconsistent Statements
 Prior convictions
 Collateral facts
 Character evidence
 Similar fact evidence
Evidence that is presumptively inadmissible:
 Hearsay
 Leading Prior Consistent Statements
 Character evidence lead by the Crown [opposing party]
 Similar fact evidence
 Common law confession
 Collateral facts
 Testimony from incompetent witnesses (spouses)
Evidence that may be admissible under a principled approach:
 Hearsay (Khan)
 Similar fact evidence (Handy)
Evidence that is admissible based on a statutory process:
 Prior convictions (CEA s. 12*, CC s. 666** and BCEA s. 71)
 Statements after detention/arrest (Charter s. 7, 24(2))
 Business records (CEA s. 29, 30)
 Preliminary inquiry evidence read in (CC s. 715)
 Transcript of other proceedings (BC Civil Rules Rule 12-5(54))
* if witness | ** if the accused’s character is in issue
Law 309: The Law of Evidence
Privilege
Judge’s
Discretionary
Power to Exclude
Jury Instructions
G. Morgan (Foster, Spring 2013) | Page 2
A party may be competent to testify but may not disclose information protected by privilege:
 solicitor-client privilege
 litigation privilege
 informer privilege
 spousal privilege
 case-by-case privilege
Notwithstanding that the evidence is admissible, the trial judge retains a discretionary power to exclude
otherwise admissible evidence:
 Crown evidence: “admissibility will depend upon the probative effect of the evidence balanced against
the prejudice caused to the accused by its admission” (Sweitzer qtd. in Seaboyer)
 Defence evidence: in light of the “fundamental tenant of our judicial system that an innocent person
must not be convicted[, i]t follows from this that the prejudice must substantially outweigh the value of
the evidence before a judge can exclude evidence relevant to a defence allowed by law” (Seaboyer)
Although the evidence may be admissible, the judge may be required to provide instruction on how the
evidence or principle may be used:
 Beyond a reasonable doubt (Lifchus “gold standard”)
 Recent fabrication and sexual assault per CC s. 275 (D.(D.))
 Evidence of the complainant’s past sexual history per CC s. 276 and 277 (Seaboyer CB 112)
 Vetrovec warning for corroboration
 Expert evidence and general comments on credibility (Marquand)
 Accused failure to testify (CEA s. 4(6) and Noble, Prokofiew)
 Narrative (Dinardo)
 Reputation for truth-telling (Clark)
 Adverse witness (CEA s. 9)
 Character evidence (minimal weight in Profit, neutralize reputation of good character not inference of
guilt)
 Voluntariness of statement to person in authority (Hodgson)
 Spousal privilege = entitlement of married spouses; not the accused’s decision (Zylstra)
 Similar fact evidence (
 remedial option for Browne v. Dunn (original witness did not get to respond to this version)
Law 309: The Law of Evidence
G. Morgan (Foster, Spring 2013) | Page 3
Introductory Materials
Vocabulary
Bootstrapping
Credibility
Reliability
Competency
Compellability
Privilege
Permissive inference
Presumption
process by which a questionable piece of evidence “picks itself up by its own bootstraps” to fit within an
exception (e.g., statement is reliable because it was made under pressure that concoction was unlikely, but
statement is adduced to demonstrate such pressure) (see Khelawon at CB 255)
the degree to which the witness can be believed
the degree to which the evidence can be trusted, to which the trier of fact can be confident in its truth
legal capacity to be a witness
nature and extent of a lawful requirement (or lack thereof) for a witness to give evidence
right to refuse to provide certain information either when testifying or disclosing documents on the ground of a
special interest recognized by law
Once fact A is established, fact B is proved unless the opposite party (1) adduces some evidence to the
contrary or (2) proves the contrary on the balance of probabilities
Policy Considerations
Evidence = basic value of the justice system (e.g., secures other values like trial fairness)
Modified adversarial justice system requires evidentiary process (e.g., the truth—through evidence—emerges from the adversarial
process)
Ethical responsibilities of a courtroom lawyer also guide evidence inclusion/exclusion
Residual discretion to exclude evidence  judges are able to exclude otherwise admissible evidence on the grounds that its prejudicial
value outweighs its probative value
Shift from “pigeon holes” (statements of inadmissibility + exceptions) to the principled approach  “There is wide agreement that the
approach of general exclusion supplemented by categories of exceptions is bound to fail because of the impossibility of predicting in
advance what evidence may be relevant in a particular case” (Seaboyer CB 110)
Development of overarching exclusionary discretion under the Charter (Seaboyer, Potvin, Corbett)
Increasing admissibility on the basis that better results emerge from inclusion with instruction rather than exclusion
Guest Lecture:
(1) so what if you effectively leverage your Evidence learning and get the evidence in? the evidence is
Justice Williamson
often quite frail so corroboration is key
(BCSC)
(2) eyewitness identification  use something else to corroborate it (or undermine it)
(3) be careful for stepping outside common sense (even if it’s within the abstract test) because it
undermines credibility
(4) be careful how much you identify with your client to the point that you lose your objectivity  need to
be able to step back and see the rules of the system (don’t make judgements based on subjective
“feelings”)
(5) judges are generalists in the BCSC  don’t dredge up the entire body of law but rather the key SCC
case plus the most related cases (e.g., know the law that you need to rely on)
(6) effective counsel = counsel on both sides who agree on a number of things (which helps start off the
case with a happy judge); also a chronology as an aide memoire
Law 309: The Law of Evidence
G. Morgan (Foster, Spring 2013) | Page 4
PART I: BASIC CONCEPTS
I.
The Sources and Goals of the Law of Evidence
The Sources and Goals of the Law of Evidence
Definition of
Evidence
Current
Trajectory
Assessing
Evidence
Black’s Law Dictionary: “All the means by which any alleged matter of fact ... is established
or disproved”
Evidence law applies to the proof of facts that provided a basis for applying jurisdictional
law, procedural law and remedial law.
BUT evidence is meant to be the servant, and not the master, of justice (Official Solicitor
v. K [1965] HL)
“The law of evidence continues to develop in the direction of a principled approach in
which the trial judge’s central task in determining admissibility is to balance the probative
value of the evidence against its detrimental effects on the trial process”
1.
2.
3.
4.
Relevance
Materiality
Admissibility
Probative value
Fundamental rule:
Everything that is relevant to a fact in issue is admissible unless there is a legal reason for
excluding it.
Alternatively: “Evidence is not admissible unless it is: (1) relevant; and (2) not subject to
exclusion under any other rule of law or policy”
Relevance
n.b. the weight placed on evidence is determined by the trier of fact
Two particular considerations determine whether a piece of evidence is relevant:
(1) Factual Relevance (experience, empirical knowledge, belief, etc.)
TEST: Whether the evidence makes a fact in issue more or less likely to be true.
“Does the evidence offered render the desired inference more probable than it
would be without the evidence?” (Charles T. McCormick)
(2) Materiality [Legal Relevance] (not just significant facts that may be relevant, but
facts that are legally significant)
Reasons for
Excluding
Relevant and
Material
Evidence
TEST: Step 1: Review the elements of the offence or pleadings to identify
material issues. Step 2: determine whether the evidence is directed at a fact in
issue.
Rationales for exclusion: theory that the evidence is inherently unreliable, or (conceding
reliability) that another value is engaged, or efficiency is aided by exclusion
(1) admitting it would distort the fact finding function of the court (e.g., hearsay)
(2) admitting it would unnecessarily prolong a trial or confuse the issues (e.g.,
dissuade efficiency and truth-finding)
(3) admitting it would undermine some important value other than fact-finding (e.g.,
solicitor-client privilege)
(4) the evidence in which the evidence was acquired is inconsistent with the nature
of the trial process (e.g., necessary to facilitate neutrality and impartiality of
decision makers)
Law 309: The Law of Evidence
Test of
Admissibility
Four Factors to
Determine
Admissibility of
Evidence
Sources of the
Law of Evidence
G. Morgan (Foster, Spring 2013) | Page 5
 likely a less important consider: Foster
(5) evidence should be excluded where its probative value is outweighed by its
prejudicial effect (e.g., weak similar fact evidence
(1) Is the evidence factually relevant—that is, does it tend to prove or disprove the
fact for which it is tendered?
(2) Is the evidence legally relevant (material), that is, is the fact that the evidence
tends to prove or disprove legally significant in establishing an element of the
cause of an action, offence, or defence at issue?
(3) Is the evidence inadmissible on any ground of law or policy?
(4) Does the prejudicial effect of the evidence outweigh its probative value?
(1) the danger that the facts offered may unduly arouse the jury’s emotions of
prejudice, hostility, or sympathy
(2) the probability that the proof and the answer evidence that it provokes may create
a side-issue that will unduly distract the jury from the main issues
(3) the likelihood that the evidence will consume an undue amount of time
(4) the danger of unfair surprise to the opponent when, having no reasonable
ground to anticipate this development of proof, he would be unprepared to meet it
Main source: common law
 much of modern day evidentiary rules come from the common law, and continue
to evolve under the common law
(a) Criminal Code s 8(2): “criminal law of England that was in force in a province
immediately before April 1, 1955 continues in force in the province except as
altered, varied, modified or affected by this Act or any other Act of the
Parliament of Canada”
Other sources:
 statutes: Canada has little statute modification of the common law; statutes,
however, continue to rely on or cannot be understood without help from the
common law; statutory evidentiary rules are subject to the court’s general
common law discretion to exclude evidence when its prejudicial effect outweighs
the probative value (Corbett, Potvin)
(a) Canada Evidence Act s. 40 allows provincial evidence rules to apply except
where they conflict with Acts of Parliament
 aboriginal law: unless explicitly extinguished, aboriginal law applies (Sparrow)
 Constitution Acts: evidence rules must comply with the constitution (Seaboyer,
Swain, Daviault, Stone)
(a) Where evidence rules pertain to 2 prviate individuals, common law will be
developed in accordance of Charter values (Hill)
(b) Constitution Act ss. 91 and 92 apply to rules of evidence as well as
substantive law
(c) Charter specific
(i)
express constitutional protection for some evidentiary principles in
criminal proceedings (e.g., accused innocent until proven guilty;
right to an impartial hearing; not compelled as a witness against
oneself; right against self-incrimination)
(ii)
s. 7 as a vehicle to constitutionalize evidentiary principles because
liberty is always at stake in criminal proceedings
(iii)
Charter protects important rights in the investigation of an offence
(including right to not self-incriminate)
(iv)
where evidence is obtained in a matter that infringed a Charter right,
the Charter provides a remedy under s. 24
Law 309: The Law of Evidence
G. Morgan (Foster, Spring 2013) | Page 6
The Trial Process
Framework
Chronology
Re-examination
II.
 primarily description of a criminal trial
 trial = primarily narrative told through oral testimony through witnesses
 real evidence (demonstrative evidence): either evidence of the offence (blood stained
shirt) or aids (reports on blood type)
(1) begins with an Information or Indictment (criminal), or Notice of Civil Claim (civil)
(2) disclosure (Crown has to disclose the full case in a criminal trial [Stinchcombe] or
both parties disclose in a civil trial using Examination for Discovery) and motions
(anticipated issues regarding the admissibility of evidence tends to arise in
motions in a post-Charter world)
(3) Crown’s case (plaintiff’s case)
a) Opening Statement
b) Examination
 Direct Examination (examination in chief)
 Cross-Examination
 Re-Examination
c) Voir dires
 most common voir dire was whether a statement by the accused is admissible
(not in front of a jury)  reason why the shift to pre-trial motions as it is awkward
and disruptive to send the
 also voir dires to determine whether witnesses are competent to testify
(conducted in front of jury)
d) Motions
 most common = motion for a direct verdict of acquittal
(4) Defendant’s case
a) Opening statement (if not earlier)
b) Examination
c) Voir dires
(5) Judgement (judge) or verdict (jury)
(6) Sentencing (criminal) or costs (civil)
(7) Appeals
 new evidence: must establish that it is a) highly probative, and b) not available
at the time of the trial
Rule: a party cannot re-examine on anything that could have been raised in the
examination in chief but may re-examine on matters raised in the cross-examination
 however, judges are increasingly flexible on this matter (but not to the point that the rule
no longer exists)
Witnesses: Competency, Compellability and Examination
Oaths and Affirmations
Historical
development
At the time of the Norman Conquest, the primary issue was who bore the burden of proof.
If the accused bore the burden, trial was most a question of oath (typically testing the
accused’s oath against something else.)
Trial by oath
Least onerous test: wager of law (12 neighbours to swear that your oath was clean)
Next least onerous test: trial by ordeal (test of supernatural intervention)
Likely more onerous test: trial by battle (Norman introduction)
Trial by jury (trial by recognitors)
 trial by jury originally appeared similar to wager of law (the neighbours go out,
investigate, form an opinion of the case and then return to court to swear an oath to guilt or
not guilt)
Law 309: The Law of Evidence
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 reason why the accused could not testify (persisted to 1890s) b/c courts did not want to
confuse trial by jury from trial by oath
Form of Oath
Shift from oath of guilt to oath of rendering a
Oath: “the truth, the whole truth and nothing but the truth, so help you God”
In mid-century (particularly in BC), recognition that the oath did not need to be sworn to
Christianity
 CB 46 (Bannerman): paper oath, chicken oath
 something that “grabs hold” of the witness’s conscience
Solemn affirmation (CB 52 [Walsh] has old version):
 development in 20th century as alternative for atheists, agnostics and Christians who
could not swear a judicial oath (i.e. Quakers)
Canada Evidence Act (s. 14):
I solemnly affirm that the evidence to be given by me shall be the truth, the whole
truth and nothing but the truth.
R. v.
Bannerman
MBCA 1966
Until 1987, Canada Evidence Act s. 16(1) stated that a child under 14 who could not give
an oath, the evidence could still be made without an oath provided that the child was of
sufficient intelligence and understood the duty of speaking the truth
However, s. 16(2) specified that the case could not be decided on this evidence alone and
must be corroborated by other evidence.
 common tactic with cases like this one (oath vs. oath as there is no other evidence)
Problem in this case: the child did not understand the spiritual consequences of not telling
the truth (i.e. did not know that he would go to Hell)
BUT s. 16 does not specify knowledge of spiritual consequences (likely requirement read
in by judges and lawyers)
Test according to Dickson J.:
“the child appreciate it is assuming a moral obligation” (CB 47)
R. v. Walsh
Problem: how is this requirement different from unsworn testimony under s. 16?
 courts therefore had to wrestle with the difference between sworn and unsworn
testimony (see Fletcher and Leonard: sworn testimony includes understanding the
solemnity of the occasion and the added responsibility of taking the oath in court
Foster: “Satanist case”
ONCA 1978
Facts: Harford (a Satanist) was declared incompetent. Appeal to CA.
Trial judge relied on R. v. Hawke (ONCA 1975) incorrectly  see CB 53
Examining Witnesses: Examination in Chief and Cross-Examination
Direct
examination
Key rule: do not lead the witness on anything material
 permissible to lead on background information to speed up the trial
Leading question = question that suggests its answer
Crossexamination
Also guided by materiality
Cross-examination is often described as “wide open”
 i.e. may cross-examine on matters directly material to the issues in the case but also on
matters that go to the reliability of the witness
Cross-examination may use leading questions (arguably the essence of a crossexamination)
Law 309: The Law of Evidence
Testimonial
factors
G. Morgan (Foster, Spring 2013) | Page 8
n.b. special protections for an accused who testifies as well as complainants in sexual
assault cases
(1) witness’s use of language
(2) witness’s sincerity
(3) witness’s memory
(4) witness’s perception
Memory: distinction between present recollection revived and past recollection recorded is
often lumped together under “refreshing memory”
 present recollection revived  most common is a police officer referring to his or
her notebook, or leading a witness who is panicking on the standard
Learned Hand J.  the device used to refresh a witness’s memory could be “a song, a
scent, a photography, an allusion, even a past statement known to be false” (CB 78)

Rule in Browne
v. Dunn (UKHL
1893)
Evidentiary
Support for
Questions
during CrossExamination
R. v. Lyttle
SCC 2004
past recollection recorded  four requirements: (1) past recollection must have
been recorded in some reliable way; (2) at the time, it must have been sufficiently
fresh and vivid to be probably accurate; (3) the witness must be able now to
assert that the record accurately represented his knowledge and recollection at
the time  the usual phrase requires the witness to affirm that he “knew it to be
true at the time”; and (4) the original record itself must be used, if it is procurable
Is it hearsay? Foster: yes, likely an exception to the old rule against hearsay evidence
because it is an out-of-court statement that is being offered to prove the truth of what is in
the statement
More a rule of adversarial ethics and fairness:
If you are going to present a contradictory version of a witness’s testimony, you need to put
that version in front of the witness to provide the witness the opportunity to explain
Remedies:
(1) recall the original witness
(2) jury instruction to weigh the new evidence in light of the fact that the original
witness did not have a chance to respond to the new evidence
It has been the law for a long time that the cross-examiner may ask the witness questions
that are not supported by evidence
 Lamer J. in Howard and in obiter wrote that “It is not open to the examiner or crossexaminer to put as a fact, or even a hypothetical fact, that which is not and will not become
part of the case as admissible evidence.”
" problem: likely Lamer J. did not mean what the trial judge (and several CA’s) had held it
to mean (i.e. the original rule still applies)
Facts: individual reports assault to police officer claiming the theft of a gold necklace; first
police officer wrote in notes that he thought that the case was a drug deal gone bad and
the individual identified Lyttle to avoid the bad drug guys
Questions on cross examination = anything as long as good faith (e.g., do not require
evidence) plus not harassing
Spousal Competency and Compellability
Historical
Context
The common law trial used to be pretty sparse: parties could not testify under oath;
spouses could not testify under oath; anyone with an interest in the outcome could not
testify under oath; and convicted criminals could not testify under oath
 starting in the 1850s, these disqualifications were removed by statute
 residue still remains: accused cannot be compelled to testify under oath; position of the
spouse is more complicated under s. 4 of the Canada Evidence Act
Law 309: The Law of Evidence
Distinguishing
three concepts
Canada
Evidence Act
section 4
G. Morgan (Foster, Spring 2013) | Page 9
n.b. Court of Chancery pioneered the examination of witnesses under oath
(1) competence  threshold question (is the witness either excluded from testimony
due to personal reasons such as immaturity or mental disability, or is the witness
excluded from testifying due to policy reasons such as marital harmony?)
(2) compellability  can the witness be required to testify (e.g., is he or she
compellable) or does the witness have a choice?
(3) privilege  right to refuse to provide certain information either when testifying or
disclosing documents on the ground of a special interest recognized by law
At common law, spouses (and the accused) were incompetent witnesses for both the
Crown and the defence
Section 4(1) removes the incompetency of the spouse to be a competent witness for the
defence
 at one point, the spouse could be compelled by either the Crown or the defence
 Gosselin: husband charged with murder, wife compelled to testify as a Crown witness,
husband convicted
 Canada Evidence Act amended to specify that the spouse can be compelled for the
defence
Section 4(2) provides the exceptions in which the spouse is both a competent and
compellable witness for the Crown
 exceptions: sexual offences and offences related to marriage (i.e. bigamy,
polygamy)
Section 4(3) deals with privilege (covered later in the course.)
Section 4(4) provided further exceptions making the spouse both competent and
compellable
 exceptions: offences related to violence or harm of a child under the age of 14
 likely enacted in response to a common law exception crafted by judges to
response to situations in which a child was murdered and the Crown was
uncertain which parent was responsible
 Parliament extended this exception to any child (i.e. not just a child from the
marriage / relationship)
R v Salituro
SCC 1991
Section 4(5) allows the spouse to testify where the common law would allow him or her
 common law exception: when the accused is charged with an offence against the
health, liberty or life of the spouse, that spouse is competent to give evidence for
the Crown (Lord Audley’s Case in 1631)
 uncertainty: can the spouse be compelled in these circumstances?
 c.f. R. v. McGuintey (syllabus)
 safe to say that the court would make the spouse compellable to protect the
spouse (i.e. no permit the accused spouse to threaten the other spouse)
 generally, likely that a witness is compellable if competent unless specified to
only be competent
Facts: accused was charged with forgery for signing a cheque in his wife’s name; his
defence was that he had her permission; wife and husband were irreconcilably separated;
wife alleged that she had not given permission
Analysis:
 per s. 4(1), she was incompetent because she would not be called by the
defence and none of the exceptions in s. 4(2) and (4) apply
 per s. 4(5), it would be a stretch to fit in Lord Audley’s Case
Law 309: The Law of Evidence
G. Morgan (Foster, Spring 2013) | Page 10
Rationales for spousal incompetency:
(1) marital harmony
(2) natural repugnance to oblige a spouse to tesify against another
(3) husband and wife become one in marriage (the husband)
(4) identify of interest (presumption that they have the same interest)
Exception: expand current exception to include irreconcilably separated spouses
 do we want courts evaluating dissolution to determine irreconcilability? argument:
courts do it all the time in assessing divorces, etc. (Foster: likely not quite so clear)
n.b. appeal provisions are set out in section 690-ish of the Criminal Code and they are
varied and different; Crown can generally appeal questions of law whereas the accused
can appeal questions of law and questions of mixed fact and law
 appeals as a right arise in circumstances such as this one where one judge at the CA
dissented on a matter of law
R v Hawkins
SCC 1996
further n.b.: leading authority on the legitimacy of judges changing the common law 
appropriate if an incremental change
Facts:
 22 June 1987: Graham’s statement to the police (allegations of abuse; evidence
that he’s a dirty cop)
 28 November 1987: second statement (confirming first statement)
 29 January 1988: Hawkins charged w/ conspiracy
 July 1988: Graham leaves Hawkins
 7/8 September 1988: preliminary inquiry; H&G reconciled (G as reluctant witness)
 January/February 1989: preliminary inquiry resumes and G recants allegations
that he’s a dirty cop
 21 March 1989: H committed to trial
 31 March 1989: H and G marry
¶8 (CB 30): “I guess I’m going to have to marry her”
Crown had two positions:
(1) modify the rule to make a spouse competent if the marriage was after the charge
was laid
(2) in the alternative, modify the rule by evaluating whether the purpose of the
marriage was to circumvent the rules
The first case was likely difficult because it could be perceived as a more-than-incremental
change because it has been long accepted that spousal incompetency covered past
events
The second one has a difficult evidentiary burden (how does one establish what the
purpose of the marriage is?)
 the Court does leave one exception: a truly “sham” marriage
 high burden: (1) sole reason was to benefit from the spousal incompetency rule,
and (2) not a real marriage
Equitable: Charter arguments under s. 15 suggest that the spousal competency rules
should extend to common law relationships (i.e. not just marriage)
c.f. William Coffin
Law 309: The Law of Evidence
G. Morgan (Foster, Spring 2013) | Page 11
Evidence of Children and Individuals whose Mental Competence is Challenged
Pre-1987
Canada
Evidence Act
provision
R v Khan
CB 55: pre-1987 s. 16 child witness rules
(1) child may provide unsworn evidence if the child is possessed of sufficient
intelligence to justify the reception of the evidence, and understands the duty of
speaking the truth
(2) no case shall be decided upon such evidence alone, and it must be corroborated
by some other material evidence
Facts: “simple and distressing” (see reading notes)
SCC 1990
Issue: whether the child was able to give unsworn testimony
Two mistakes:
(1) distinguish between children of tenders years (e.g., 5 years of age) vs. older
children (e.g., 14 years of age)  but no distinction in law
(2) applied the Bannerman test for sworn testimony instead of the question of
whether she could provide unsworn testimony
Decision: rulings reversed
Post-Khan
amendments
Other issue: hearsay (the child’s statements to the mother)
 removed statutory corroboration requirements (part of a larger amendment of many
sexual offences to eliminate this requirement)
New s. 16 combines children under 14 with adults who had their mental capacity
challenged
Section 16(4)  Marquard (syllabus)
Section 16(1)  constitutionality has been upheld
R v D.A.I.
SCC 2012
Catch with the majority position (a simple promise to tell the truth is enough):
(1) empty gesture if the child (adult) is just saying the words for rote
(2) compare the new s. 16 with the new s.16.1 (children)  no child shall be asked
questions about the nature of the promise to tell the truth; as no similar language
is in s. 16, the same “test” should not apply (also, the empirical evidence
supporting this modification for children should not constrain the adult section)
Foster: defence has often benefited more from the cross-examination of these witnesses,
even when acting ethically
Deference
 majority felt that the trial judge’s questions were abstract and metaphysical
 dissent strongly disagreed  part of the initial inquiry into whether the witness could be
sworn or unsworn evidence
The Accused’s Failure to Testify
Historical
context
CEA s. 4(1): accused competent to testify for the defence but not competent (not
compellable) for the Crown  since 1893 (previously the accused was not competent)
Canada
Evidence Act
Provisions
Charter s. 11(c) has proved to be potent in this regard  the accused cannot be
compelling in proceedings against him or herself
CEA s. 4(6): judge or prosecutor cannot comment on the accused’s failure to testify
 likely arises in the context of the accused becoming competent (i.e. there are not two
options and the accused selects one or the other)
Law 309: The Law of Evidence
McConnell and
Beer v. The
Queen
SCC 1968
G. Morgan (Foster, Spring 2013) | Page 12
n.b. does not apply to defence counsel  may and often will emphasize that the accused
is under no obligation to testify, etc.
n.b. does not apply to a co-accused who points out that the other accused did not testify
n.b. does not apply to judge-alone trials
Issue: did the judge’s explanation amount to a “comment” under s. 4(6) (and therefore a
new trial was warranted)?
Decision: not engaged by CEA s. 4(6)
Criminal Code s. 686(1)(b)(iii)  CA has the authority to dismiss an appeal even if there
was an error of law provided that the CA is convinced by the Crown that there was “no
substantial wrong or miscarriage of justice”
R. v. Noble
SCC 1997
686. (1) On the hearing of an appeal against a conviction or against a verdict that the
appellant is unfit to stand trial or not criminally responsible on account of mental disorder,
the court of appeal
(b) may dismiss the appeal where
(iii) notwithstanding that the court is of the opinion that on any ground
mentioned in subparagraph (a)(ii) the appeal might be decided in favour of
the appellant, it is of the opinion that no substantial wrong or miscarriage of
justice has occurred, or
Issue: in a judge-only trial, can the judge use the accused’s silence as a “make weight”
factor?
Prior to Noble, the law was likely as Lamer CJ. wrote in his dissent: adverse inverse could
be drawn from the accused’s silence at trial “where the accused is ‘enveloped … in a
strong and cogent network of inculpatory facts’” (CB 76)
 where there is a really strong case against the accused and the accused does not
testify, shouldn’t it be part of the Crown’s case that there was a case calling out for an
answer and an answer was not made?
First exception:
Vézeau (SCC 1977): accused put forward an alibi defence but did not testify in support of
own alibi; trial judge told jury that they could not draw an adverse inference from his failure
to testify; SCC determined that this was an error of law
 distinguished in Noble because the defence of alibi requires notice to the Crown to
permit investigation and therefore permits an adverse inference when the accused does
not testify in support of the alibi (i.e. the exception that proves the rule)
Second exception:
If already convinced beyond a reasonable doubt, one can draw an inference
Problem with Noble: comments about s. 4(6) that suggest that the section prohibits ANY
comment on the failure to testify by the accused (even comments designed to help the
accused)
 clarification: R. v. Prokofiew (SCC 2012)
re: comments on CB 72  the defence can argue that the jury considered the accused’s
silence if counsel can
Can the CA consider the silence of the accused? (bracketed by Sopinka J.)
 no, essentially new evidence (i.e. not considered by the trial judge or jury)
 problem: case not established beyond a reasonable doubt if you needed this
consideration
Law 309: The Law of Evidence
R. v. Prokofiew
SCC 2012
G. Morgan (Foster, Spring 2013) | Page 13
It appears that CAs do consider the accused’s silence (often in the context of the curative
provision in Criminal Code s. 686(1)(b)(3). Rationale: presumption of innocence has lost
its force after conviction (Foster: likely not that persuasive)
Affirms Noble: no adverse inference in weighing out due to silence
However, overrides the obiter in Noble on s. 4(6): inconsistent with principle and prior
jurisprudence (including McConnell and Beer)
Cut-throat defence: one accused pleaded guilty and testified against P and co-accused;
co-accused testifies and P did not
5:4 split on the curative provision
 majority: trial judge’s charge was sufficient to neutralize the effect
 dissent: charge was insufficient; needed a direct and explicit rebuttal
III.
Relevancy, Probative Value and Prejudicial Effect
Relevance
R. v. Watson
ONCA 1996
2nd
Facts: Watson was charged with degree murder and convicted of manslaughter.
Watson was the driver of the getaway car after the victim was killed at his business
premises.
Doherty JA on
character evidence
Issue: defence wanted to introduce evidence that the victim always carried a gun; the
judge did not admit the evidence because it was irrelevant (i.e. there was no credible issue
of self-defence)
 theory of the Crown: conspiracy to murder
 theory of Watson: no intention to murder; waited in the car; the others’ ran out
after
 with the evidence about the victim carrying the gun, the defence can raise the
possibility that all parties pulled a gun and Watson did not know that this would
occur
 essentially, evidence of a habit 
R. v. Morris
SCC 1983
Doherty JA: Watson was not trying to justify the killing (self-defence) but rather his position
that he did not know that there would be killing accordingly, it was relevant
 Key question in determining relevance: relevant to what? what is the person
adducing the evidence trying to establish?
Facts: drug conspiracy case; not terribly strong evidence against Morris; one piece of
evidence included a clipping on the heroin trade moving to Pakistan
Issue: was the newspaper clipping admissible?  was it relevant?
Both the majority and dissenting reasons agree that it was relevant but split on the
characterization of the clipping (and therefore
Majority (McIntyre J.): relevant  “Depending on the view of the trier of fact and the
existence of other evidence, an inference could possibly have been drawn or could have
been supported to the effect that preparatory steps in respect of importing narcotics had
been taken or were contemplated.”
Wray (SCC 1971): discretion to exclude otherwise admissible evidence= narrow
 Crown theory was that Wray killed the victim and confession sweated out was excluded
as involuntary. While the confession was inadmissible, the evidence that confirms the
confession are eligible (including the relevant part of the struck confession identifying
where it would be found)
Return to this case
with character
evidence
Law 309: The Law of Evidence
G. Morgan (Foster, Spring 2013) | Page 14
 Trial judge excluded the evidence despite being admissible, which was overturned by
the SCC (requirements to exercise discretion = trifling probative value + extreme prejudice)
R. v. Seaboyer
SCC 1991
Dissent (Lamer J.): relevant but exclusionary discretion is not the cantilevered test from
Wray but rather a weighing of probative and prejudicial effects
 weighing out the probative and prejudicial values in this case, the dissent would have
excluded the evidence
Pre-Seaboyer: Corbett  admissibility of the accused’s criminal record; shift towards
dissent in Wray
At common law, examination could question and evidence could be led toward the victim’s
general sexual history, sexual activity with the accused and (just examination) sexual
activity with other men. The trial judge was also required to warn that it was unsafe to
convict without corroboration (although corroboration was not required).
1970s: start of many iterations to solve the difficulties with the common law
 1983 rape shield law subject of Seaboyer
ONCA: reviewing s. 276, it was not struck down as unconstitutional (violating the Charter)
but noted that it could have been unconstitutional in specific contexts (adopted American
approach of constitutional exemption on a case by case basis)
Main issue: is s. 276 law so broad that it violates an accused’s right to full answer and
defence?
Sub-issue: nature of the exclusionary discretion where the evidence is from the defence
(not Crown)
 McLachlin: test different for defence evidence; only excluded when the prejudicial value
substantially exceeds the probative effect
 asymmetry between Crown and defence echoes in the law of evidence (however,
balanced by the imbalance of resources?)
Twin provisions:
 s. 276 was too broad: did not tie evidence to a purpose (i.e. what happens if the
evidence was necessary but did not fit one of the three exceptions?)
 s. 277 passed muster
Two examples that illustrate the difference between the majority and dissent:
(1) American case (CB 104)
(2) Tanford and Bocchino example (CB 105)
After Seaboyer, Parliament enacted a new s. 276
 see CB 123
 upheld as constitutional in Darrach but with some wiggle room because the
amendments did not strictly follow McLachlin’s decision
 problem: trial judges are increasingly weighing probative values and prejudicial effects
even in jury trials
IV. Burden and Quantum of Proof
Types of Burden
Evidentiary burden
To put a defendant or accused to her defence, the plaintiff or Crown must have introduced
some evidence on all elements of the civil action or criminal offence to justify the case
proceeding to the next stage.
 required otherwise the defence can argue that there was insufficient evidence for the
case to continue (i.e. motion for a non-suit in a civil case or
Law 309: The Law of Evidence
G. Morgan (Foster, Spring 2013) | Page 15
Persuasive burden
Burden and
Standard of
Proof in Civil
Cases
Supreme Court
Civil Rules 12-5
Balance of
probabilities
Burden and
Standard of
Proof in Penal
(Criminal) Cases
Pre-case: summary judgement
(1) evidentiary burden = the plaintiff
 motion for non-suit (see Supreme Court Civil Rules 12-5)
(2) persuasive burden = the plaintiff
 balance of probabilities
(4) Δ may apply to have the case dismissed on the grounds that there is no evidence to
support the Π’s case
(5) Δ can apply under (4) w/o electing whether the defence will call evidence
(6) Δ can apply to have the action dismissed on the grounds that there is insufficient
evidence to make out the case
(7) under (6), the defence must elect to not call evidence
Essentially, two sets of situations depending on whether the defendant has to elect to call
evidence
 accordingly, would only proceed under (6) if no intention to call evidence
Not a statistical probability
See People v. Collins (SC Calif. 1968)
The Crown bears the evidentiary and persuasive burden (legally, only required to satisfy
the evidentiary burden to put the case before the
 the accused may be in a reverse onus situation, which requires proof on the balance of
probabilities
 if the accused wishes the jury to consider an affirmative defence (i.e. something other
than “prove it”), the accused must establish an air of reality
Evidentiary burden (Crown):
 motion for a directed verdict
Evidentiary burden (defence):
 putting an affirmative defence in issue
 air of reality test
Motion for a
Directed Verdict
Persuasive burden (Crown):
 proof beyond a reasonable doubt
Issues with these motions:
 given that it’s an evidential burden, is the ultimate burden (proof BRD) irrelevant?
 when deciding the motion, does the judge weigh the evidence?
R. v. Monteleone (SCC 1987):
(1) proof BRD is irrelevant
 problem (Foster): if the question is whether the case should go to the
jury, aren’t you asking whether a jury could convict, which is essentially a
question as to whether there is proof BRD
 SCC seems to acknowledge that the judge is at least considering proof
BRD
(2) weighing evidence
 “It is not the function of the trial judge to weigh the evidence, to tests its
quality or reliable once a determination of its admissibility has been
make. It is not for the trial judge to draw inferences of fact from the
Law 309: The Law of Evidence
G. Morgan (Foster, Spring 2013) | Page 16


Air of Realty
Test
evidence before him” (Monteleone)
When deciding these motions, the judge accepts the evidence as
credible and reliable (no consideration of accuracy)
However, SCC seems to recognize that circumstantial evidence requires
a limited weighing (consider the inferences or chain of inferences that a
jury would need to make to find the evidence relevant)
Early cases analogized with two other legal situations:
(1) preliminary inquiry judge’s determination as to whether the accused could be
committed to trial
(2) extradition hearings
 however, the Court has bracketed this issue as it is contemplated a judge may
need to weigh the evidence in determining whether the legal requirements are
met (especially if the jurisdiction permits and has advanced hearsay evidence,
etc.)
Pappajohn v. The Queen (SCC 1980)
 insufficient that there is a shred of evidence  the evidence must raise the air of
reality
R. v. Cinous (SCC 2002)
 ¶54 and 55 (CB 807)
 air of realty = legal decision subject to an error of law (i.e. subject to appellate
review)
What if the defence is a reverse onus defence? (e.g. NCRMD, non-insane automatism)
Proof Beyond a
Reasonable
Doubt
R. v. Stone (SCC 1999)
 accused had the burden to establish the defence of non-insane automatism
 although the defence has a reverse onus on the persuasive burden, the
evidentiary burden remains the same (clarified in Fontaine)
 essentially, the trial judge determines whether the evidentiary burden is met and
the trier of fact (jury) remains the arbiter of the persuasive burden (in these cases,
balance of probabilities on the defence)
R. v. Lifchus (SCC 1997)
 establishes the “gold standard”
 however, the determination of whether the explanation is sufficient is based on
the charge as a whole (i.e. not failed on a missed word if the jury would
understand the totality)
R. v. Starr (SCC 2000):essentially, need to be confident that proof BRD was significantly
stronger than balance of probabilities but fell short of absolute certainty
R. v. Morin (SCC 1988)
 issue: the trial judge appeared to have suggested that the BRD standard applied
to each piece of evidence (as opposed to the totality of the evidence), which
would raise the bar for the Crown to establish the case
 courts should not get over-involved in the minutiae
 however, juries sometimes need explicit advice: (1) jury should be told not to
examine the facts separately or in isolation (i.e. the Morin case); and (2) not
necessary for the defence evidence to be believed to acquit (i.e. the Challice case
 do not need to choose between the Crown and the defence’s case)
R. v. W.(D.) (SCC 1991):
 highlight difficulty of illustrating proof BRD and
Law 309: The Law of Evidence


Presumptions
and Reverse
Onuses in
Criminal Cases
G. Morgan (Foster, Spring 2013) | Page 17
charge where : (a) if you believe the accused, you must acquit; (b) if you do not
believe the testimony but it leaves a reasonable doubt, you must acquit; and (c)
even if you do not have a reasonable doubt after the accused’s evidence, you
must consider the totality of evidence to determine whether you are convinced
BRD of the accused’s guilt”
problems identified in R. v. J.H.S. (SCC 2008): see CB 820
Likely Wood JA in H.(C.W.) has it closest: “If, after a careful consideration of all the
evidence, you are unable to decide whom to believe, you must acquit” (CB 821)
Terminology
 distinguish between presumptions and permissive inferences
 permissive inference: the jury may infer that the person intended the natural
consequences of the act (i.e. a bullet would strike ); doctrine of recent
possession: the jury may infer that the person found in possession of recently
stolen items was the thief
True presumptions = logical structure where a statute establishes that fact B is proven
when fact A is proven unless (a) some evidence to the contrary (i.e. rebuttable
presumptions) or (b) the person in the presumption establishes the contrary
 n.b. that (a) is an evidentiary burden and (b) is a persuasive burden
 another true presumption = presumption of innocence (which must be proven
BRD)
 true presumptions must be accepted by the jury (as opposed to the “may” in
permissive inferences)
 new terminology: (a) is a mandatory presumption and (b) is a reverse onus
Appellate
Review of
Factual Findings
Example with impaired driving:
 mandatory presumption with respect to BAC that BAC is presumed to be
 rebutted by an expert considering the food, etc.
 reverse onus: being found in the driver’s seat = intention to operate
 reverse onus found to violate s. 11(b) but was saved under s. 1
n.b. most cases read in law school involve appellate review of errors of law but evidence
is concerned with questions of fact (and it is often quite harder to obtain appellate review)
 Lord Adkin: if I agree with the decision, it’s a question of fact but if I disagree it’s a
question of law
(1) civil cases
Stein v. The “Kathy K” (SCC 1976)
 for the CA to override the judge on the facts, the judge must have made a
palpable and overriding error (i.e. obvious and with the potential to affect the
result)
(2) criminal cases
 Criminal Code provisions on when the Crown and the accused has the right to
appeal (CA = questions of law, fact, and mixed law and fact for the accused
although leave req’d for questions of fact, and mixed fact and law; the Crown is
confined to questions of law); the SCC also has (generally only questions of law)
 judge vs. jury trial: juries don’t have to give reasons (harder to pick holes)
 test = if on all the evidence, was the jury verdict reasonable?
R. v. Biniaris (SCC 2000)
 nervousness around the CA being the 13th jury  in UK and US, a jury acquittal
cannot be appealed given double jeopardy (in the UK, questions of law can be
Law 309: The Law of Evidence
G. Morgan (Foster, Spring 2013) | Page 18
appealed but do not affect the accused’s liberty)
 milestone: Morgentaler v. The Queen (SCC 1976)
 QCCA had the authority in Criminal Code to either order a new appeal or
substitute a conviction, and in this case the conviction was substituted on the
grounds that neither defence was available and no other defence was proffered
(upheld by SCC)
 amendment to Criminal Code: can only substitute a conviction for a trial by
judge alone
Tyler’s question: what prevents the indefinite loops of acquittals returned to
juries?  no legal answer but likely a practical answer (witnesses die, memories
fade); see R. v. Sophonow (three murder trials)
Law 309: The Law of Evidence
G. Morgan (Foster, Spring 2013) | Page 19
PART II: EXCLUSIONARY RULES BASED ON UNRELIABILITY AND
PREJUDICIAL EFFECT
V.
Hearsay
Rule against Hearsay
Definition
(not the SCC definition but consistent with it)
Hearsay = evidence that depends for its probative value depends on the credibility of
someone who cannot be cross-examined
Irvine Younger: 1+1 = 2 where 2 = hearsay (and eliminating either 1 or 1 makes it not
hearsay, and non-hearsay = not a problem)
(1) out of court statement + (1) offered [relevant] for its truth [to prove what is
asserted in the statement] = (2) hearsay
Subramaniam v.
Public
Prosecutor
JCPC 1956
However, once we’re identified hearsay and non-hearsay, we then identify the recognized
exceptions and we THEN considered the principled exceptions
Facts: Subramaniam was convicted of being of possession of ammunition contrary to the
Emergency Regulations
Issue: was the trial judge correct to exclude the out-of-court statements of the guerillas,
who Subramaniam alleged forced him to carry the ammunition?
 n.b. the defence was duress so evidence of threats was foundational to the defence
Decision: not hearsay therefore could not be excluded as hearsay
Reasons:
(1) clearly an out of court statement
(2) problem: Subramaniam was only testifying that the statements were made (not
whether the statements were true)
R. v. Collins
Policy Consideration: did it matter that it was a death penalty case being decided in
England?
Recall facts from Crim I
When the PO was examined as to why he approached the accused, the PO said that he
had been informed that … when the defence counsel objected immediately on the grounds
of hearsay
Power Tool
Manufacturer
Problem
Problem: this statement likely would have constituted the reasonableness of the search
(the primary issue at the SCC). We do not know whether it met the 1+1 criteria (i.e. we
knew 1 but not the other). It likely wasn’t hearsay because it was tendered as evidence of
RPG (not evidence that Collins had drugs)  i.e. it’s relevance was not its truth
 n.b. this type of statement likely would not have been introduced to the jury as it is not
relevant to their decision making (only relevant to whether the search was reasonable)
(1) yes, out of court statement BUT not a statement that could be true or false (i.e.
adduced for the evidence that the exclamation was made); witness can be crossexamined on credibility
 not hearsay
(2) out of court statement + statement offered for the truth (repeating what he was
told therefore the only relevance is whether the statement is true)
 hearsay
Law 309: The Law of Evidence
R. v. Wildman
ONCA 1981
Creaghe v. Iowa
Home Mutual
Casualty
Company
US 10th Circ.
1963
Foster’s Tricky
Example
G. Morgan (Foster, Spring 2013) | Page 20
(3) not an out-of-court statement  made in court and therefore credibility can be
examined
 not hearsay
Issue: admissibility of the phone call
Hearsay? not hearsay
(1) out of court statement? yes
(2) relevance? evidence as to how the accused knew how the step-daughter had
been killed (Crown alleged that the only people who knew were the killer and the
accused)
“Performative utterances”  words (formula of words) that have legal effect (i.e. that legal
formalities occurred)
These utterances are not adduced for their truth but rather for the fact that they were made
(i.e. an oral agreement was entered into)
Wright v.
Tatham
“Hank isn’t here right now”
 now would likely address as a question of prejudicial value overweighing probative
value
 defence counsel then would leverage a problem with assessing the testimonial factors
(how do we know what Hank was referenced?); was it an implied assertion that Hank is
there sometimes? this statement would rely on the credibility of that out-of-court statement
Leading cases on implied assertions  clusterf*k of a case (people died by the time of trial
four; the lawyer who made the will died at trial three)
UK Exch. Ct.
1837
Issue: Marsden left estate to Wright (steward) and a bunch of people he liked, which
disinherited the primo geniture inheritee Tatham
Wright’s argument: the letters are evidence of people treating the testator as competent
Tatham’s argument:
Hearsay? hearsay
 letters were only relevant because of the implied assertion that Marsden was
competent  an out-of-court statement proffered for the truth of the statement
R. v. Wysochan
SKCA 1930
Problem: the relevance was an implied assertion that may or may not have been intended
n.b. probably the case that made Diefenbaker a life-long opponent of the manslaughter;
Wysochan had an excellent defence of intoxication but at the time, intoxication would result
in a manslaughter conviction; accordingly, Diefenbaker advanced a not guilty plea on the
theory that the husband did it
Issue: admissibility of the victim’s statements after the shooting but before her death
 unclear whether the SKCA admitted the evidence because it wasn’t hearsay or it was
admitted as an exception to hearsay
Problems: did she know who shot her? did she have other reasons to act this way even if
she knew that she had been shot by her husband? (i.e. shock, guilt over affair)
Why was this confusing outcome reached? Two general exceptions failed:
(1) dying declaration  victim didn’t think that she was going to die (“Help me” x 2)
(2) res gestae exception (“the thing itself”)  admitted if contemporaneous to the
event in question (i.e. getting shot)
Side issue: would
Mrs. Wildman have
been an incompetent
witness for the Crown
now given her
daughter’s age (8)?
Law 309: The Law of Evidence
R v MacKinnon
ONCA 1989
Supplement:
R. v. Baldree
ONCA 2012
G. Morgan (Foster, Spring 2013) | Page 21
The above exceptions are considered reliable because they are spontaneous
 similar approach in the US where statement is statutorily defined as an oral and written
admission OR non-verbal conduct by a person that is intended as an assertion
n.b. also an example of how to enter defences without calling witnesses (CB 147)
n.b. also note the spousal competency issue
This case shows that this issue is still live in Canada as Wysochan and MacKinnon do not
reconcile easily with Wright
 ONCA split 2:1 and excluded an implied assertion hearsay statement (leave granted to
go to SCC)
n.b. will likely study in the review class as it overviews the principled exception as well
Traditional Exceptions to the General Hearsay Rule
Overarching
theme
Wigmore asserts two commonalities to the exceptions:
(1) sufficient reliability  is there some other circumstantial guarantee of reliability
that will compensate for the inability to cross-examine?
(2) necessity  is there a real need for the evidence to answer an issue in the
case? (not just enough for the Crown to need the evidence to meet the burden of
proof)
A Possible Classification of Hearsay Exceptions
A. Admissions
B. Where the hearsay declarant
/ testimony is unavailable
 statements against
interest
 testimony from prior
judicial proceedings
 dying declarations
 declarations in the
course of duty (e.g.,
business records)
C. Where the hearsay declarant
is available
 previous (out of court)
identifications
 past recollection recorded
 prior consistent
statements
 prior inconsistent
statements
D. Where availability is not an
issue
 statement of present
physical condition
 statement of present
mental/emotional state
 spontaneous
utterances
Admissions by Parties
Admissions
Exception
Foster: single largest exception to the hearsay rule
NOTE: do not confuse the admissions exception to the concept of formal admission (where
one party accepts the other party’s fact(s))  we’re focused on [informal] admissions
FURTHER NOTE: do not confuse with the statements against interests exception (for
ordinary witnesses); the admissions exception is only for parties
[Informal] admissions = anything said or done by the opposite party that the alleging party
wants to put in evidence
 Wigmore did not believe that admissions were hearsay (i.e. cannot complain about
cross-examining yourself) but rather a necessary part of the adversarial system
 however, Canada still classifies admissions as a hearsay exception because they are
out of court statements made for the truth of the statement
Statement of Exception: if a party to the case says anything, it can be introduced by the
other party
 in criminal cases, this exception is more appropriately the confessions rule
n.b. the admission is admissible only against the party who made it (i.e. not applicable
against the other co-accused)
Wrinkles:
Law 309: The Law of Evidence
G. Morgan (Foster, Spring 2013) | Page 22

Adoptive
admissions &
the principled
approach
adoptive admission
1) breach of promise: woman sues man; she wanted to introduce evidence that
she told him at a social gathering “you promised to marry me“ and the man
just hung his head; hanging his head = admission; admissible
2) breach of promise case: similar facts but the woman wrote it in a letter and
the gentleman did not reply, which—according to the court—was what a
gentleman would have done; not admissible
 statements of agents
 example of car crash where the seriously injured victim was unconscious at
the time and the truck driver was found sobbing on the truck (“I fell asleep at the
wheel”); truck driver is unavailable; victim sues ABC trucking (employer)
 original position: truck driver was not authorized to make admissions of liability
(hired to drive not talk)
 new approach: if the statement was made in the scope of his authority / in the
course of employment, it will bind the principal
 common purpose conspiracy
 any statement of a person within the conspiracy binds the
 Criminal Code s. 21(2)
Plaintiff will argue that it is reasonable to infer that the defendant was silent (an admission
of guilt)
 If not accepted as an admission, argue under the principled approach that the
evidence is reasonably necessary and sufficiently reliable to put it before the
trier of fact
Statements Against Interests
Statements
Basic requirement: the statement had to be made against the witness’s pecuniary or
Against Interests proprietary interests (based on the assumption that we don’t make statements against our
Exception
financial or property interests)
 arguably an example of Wigmore’s two assertions: necessary and more-or-less reliable
R v O’Brien
SCC 1978
Canada has extended the exception to include statements against penal interests
 more concerns, however, about the reliability of these statements
Facts: defence wanted to admit a statement from Jensen to O’Brien’s lawyer that O’Brien
shouldn’t be in jail because Jensen robbed the bank; Jensen was now dead
Controversy over the BCCA’s decision, which found the statement was not hearsay (?!)
R v Pelletier
ONCA 1978
Lucier v. The
Queen
SCC 1982
The SCC ruled that a) it was hearsay; and b) it was not against Jensen’s penal interests
because he would not put the statement in an affidavit, and if he did testify, Jensen said
that would be under the protection of the Canada Evidence Act (i.e. could not be used
against him in subsequent proceedings)
 accordingly, missing reliability as Jensen was not risking anything
To assess, need to consider the whole statement and context to determine whether
Asymmetry: Crown wanted to introduce the evidence of the arsonist (dying in the hospital)
who implicated the business owner as hiring him to burn down the building
SCC: exception could only be invoked by the accused
 why? the accused could be convicted without cross-examining the witness
 Foster: that’s a bit of problem because that’s the essence of hearsay (evidence
that cannot be cross-examined); on the flip side, there’s a difference between
ensuring a conviction (i.e. infringement of liberty) and not being able to make out
the Crowns’ case (i.e. proof not satisfied)
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Prior Judicial Proceedings
Prior Judicial
Proceedings
Wigmore: not an exception because it wasn’t hearsay; the nature of the exception at
common was strict (the witness was dead and the evidence resulted from proceedings with
the same parties, which meant that cross-examination occurred)
Canada still considers it as an exception to hearsay  Walkerton (Town) v. Erdman
Narrow exception before: witness was dead AND the evidence resulted from proceedings
with the same parties on the same issue (as the cross-examination would have been
sufficient)
Broadening the exception: Criminal Code s. 715 and BC Supreme Court Civil Rules 125(54)
Criminal Code
s. 715
R. v. Hawkins
SCC 1996
Criminal exception (CB 172):
Essence = a witness who refused to be sworn at trial or is unavailable at trial BUT the
witness gave evidence at a prior proceeding (i.e. a preliminary hearing), the transcript of
the evidence may be entered if the defence had the opportunity to cross-examine in a
preliminary inquiry
 leading case = Potvin (SCC 1989)
 problems: trier of fact cannot assess credibility first hand; credibility isn’t an issue
at a preliminary inquiry; defence often doesn’t examine significantly to avoid
tipping hand
 SCC: so long as there was an opportunity, it doesn’t matter if there was
inadequate cross-examination at the earlier stage
 invoking Charter values, the SCC said that there was a statutory discretion for the
judge to still exclude evidence that would otherwise be admissible given the
mechanical application of s. 715 but the admission would result in an unfairness
(CB 176)
 often complex issues raised in these cases (c.f. Sophonow where key evidence
was “read in” during one of the trials and the witness who provided the evidence
later emerged as “unsavoury”)
Evidence at preliminary inquiry may be read at trial in certain cases
715. (1) Where, at the trial of an accused, a person whose evidence was given at a
previous trial on the same charge, or whose evidence was taken in the
investigation of the charge against the accused or on the preliminary inquiry into
the charge, refuses to be sworn or to give evidence, or if facts are proved on oath
from which it can be inferred reasonably that the person
o (a) is dead,
o (b) has since become and is insane,
o (c) is so ill that he is unable to travel or testify, or
o (d) is absent from Canada,
and where it is proved that the evidence was taken in the presence of the
accused, it may be admitted as evidence in the proceedings without further proof,
unless the accused proves that the accused did not have full opportunity to crossexamine the witness.
Facts: see facts from earlier study under Spousal Competency
Mrs. Hawkins did not fit within Criminal Code s. 715 because she neither refused nor was
unavailable to testify: she was unable to testify due to her incompetency  accordingly,
evidence could not be read in
BC Supreme
Use of transcript of other proceedings
Court Civil Rules
(54) If a witness is dead, or is unable to attend and testify because of age, infirmity,
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G. Morgan (Foster, Spring 2013) | Page 24
sickness or imprisonment or is out of the jurisdiction or his or her
attendance cannot be secured by subpoena, the court may permit a
transcript of any evidence of that witness taken in any proceeding, hearing
or inquiry at which the evidence was taken under oath, whether or not
involving the same parties, to be put in as evidence, but reasonable notice
must be given of the intention to give that evidence.
Verdicts from Prior Criminal Proceedings
Verdicts from
Prior Criminal
Proceedings
At common law, this type of evidence is generally unavailable per Hollington
 statutorily reversed in most instances and not followed in some common law cases
BC Evidence Act section 70(2): when there is a conviction + the offence is relevant to an
issue in the action  proof of conviction is admissible
Hollington v. F.
Hewthorn and
Co. Ltd.
UKCA 1943
n.b. more routine to cross-examine a party on his or her criminal record (generally under
the guise of testing the witness’ credibility)
Facts: driver struck son and killed him; driver died as well; driver had a previous
judgement for negligent driving; father brought case against driver’s company
Denning (the lawyer) argued that the driver’s prior conviction could be entered as prima
facie evidence that the driver had driver negligently and therefore the company should be
held responsible f
Decision: characterized the prior conviction as a) a hearsay statement, and b) an opinion
(neither of which were admissible)
Statements of Present Physical Condition or Mental/Emotional State
Statements of
Present Physical
Condition or
Mental/Emotional
State
Often cases in which the question of hearsay is not raised because they are not treated as
out of court statements proffered for the truth
 however, only evidence for an inference (i.e. not direct evidence of a cause)
Generally admissible when contemporaneous to the incident as these statements are
generally accepted to be reliable (i.e. no time to concoct, directly related to the incident)
Tricky: when the statement indicates intention (i.e. mental state? or an out-of-court
statement proffered for the truth of its contents?)
Youlden v.
London
Guarantee and
Accident Co.
Ont. HCJ 1910
Mutual Life
Insurance
Company v.
Hillmon
USSC 1892
Thomson (UKCA 1912) = abortion doctor; wanted to lead evidence from a woman who
spoke to the deceased before her death  not admissible (intention ≠ current physical or
mental state; evidence would weight differently for the accused vs. the Crown)
 contrast with R. v. Wainwright (US case) as the US and UK jurisprudence split
Facts: deceased tried to lift a very heavy tree; deceased told his partner that he was afraid
that he injured himself; two days later, he died; causation argument: the strain of lifting the
heavy tree caused a bacterial imbalance
Decision: admissible  deceased’s statements about his own physical condition would be
the best evidence of his condition
Facts: wife claimed life insurance policy on husband who she alleged was killed in a
firearm incident; three insurers (!) alleged that he was alive; insurers wanted to introduce a
letter written by a man to his fiancé indicating that he was going to travel with the husband
(and that the person killed by the firearm incident was this man, not the husband
Decision: letter was admissible  “high watermark” of admissibility as the letter was not
contemporaneous, not really an indication of immediate physical or mental state
Famous case  see website; exhumation of remains was not conclusive but some
evidence suggests that the deceased was the husband (not the man alleged by the
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R. v. P. (R.)
Ont. HCJ 1990
G. Morgan (Foster, Spring 2013) | Page 25
insurers)
Facts: alleged domestic homicide; Crown wanted to introduce circumstantial evidence that
consisted of statements that the deceased had made in the months leading up to her
death; four mental states: deceased’s fear of P, unhappiness and dissatisfaction with the
relationship, determination to end that relationship, and her intention to terminate the
relationship permanently
Chain of inferences: circumstantial evidence  inference of intention  motive  identity
Decision: some statements were admissible
Reasons: (1) importance of other fact in the case (probative value is assessed in light of
the value of other evidence); (2) while the evidence was prima facie admissible, some was
excluded using the procedure at CB 190 (i.e. remote; relevance < probative value; bad
acts alleged to P)
Key quote: “Assuming relevant, evidence of utterances made by a deceased (although the
rule is not limited to deceased persons) which evidence her state of mid are admissible. If
the statements are explicit statements of a state of mind, they are admitted as exceptions
to the hearsay rule. If those statements permit an inference as to the speaker’s state of
mind, they are regarded as original testimonial evidence and admitted as circumstantial
evidence from which a state of mind can be inferred. The result is the same whichever
route is taken, although circumstantial evidence of a statement of mind poses added
problems arising out of the inference drawing process …” (CB 187-88)
Limits on this type of evidence:
“The rules of evidence as developed to this point do not excluded evidence of utterances
by a deceased which real her state of mind, but rather appear to provide specifically for
their admission where relevant. The evidence is not, however, admissible to show the
state of mind of persons other than the deceased (unless they were aware of the
statement), or do show that persons other than the deceased acted in accordance with the
deceased’s stated intention, save perhaps cases where the act was a joint one involving
the deceased and other person. The evidence is also not admissible to establish that past
acts or events referred to in the utterances occurred” (CB 188)
 SCC qualification: not admissible for joint enterprises (not beyond the common
purposes conspiracy)
Excited Utterances / Spontaneous Declarations [the res gestae statements]
Excited
Utterances /
Spontaneous
Declarations
R. v. Bedingfield
Famous res gestae exception
 problem: res gestae has been used to describe almost all the exceptions under D at
some point
Res gestate = “the thing itself”
Foster: only case that he is aware of in which a judge wrote a pamphlet defending his
decision  see article in Fordham Law Review, “Sex, Threats, and Absent Victims”
Problem: some evidence that the excluded statement was never made (witness changed
story several times, wound to the throat was so severe that it is unlikely something could
have been said)  these factors likely influenced the decision (especially the denial under
the dying declaration)
Decision: not admissible
Two routes to admission:
(1) dying declaration
 dismissed as it was allegedly unclear that the victim knew she was dying
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G. Morgan (Foster, Spring 2013) | Page 26
Ratten v. The
Queen
 Foster: probably an issue given the state of medical knowledge at the time
(2) spontaneous utterance
 not admissible as not contemporaneous to the throat cutting (“look what Harry
did to me” vs. “look what Harry is doing to me”)
Strange case: clear that it was a female voice on the telephone calling for the police but
Mr. Ratten denied that he or his wife called the police
JCPC 1972
Decision: evidence was not hearsay therefore admissible
R. v. Clark
Reasons: (1) in the alternative, the JCPC found that the evidence would have been
admissible under res gestae; (2) shifted analysis from contemporaneity to spontaneity;
(3) spontaneity = pressure of events was such that there was not time for concoction or
mistake; (4) likely also contemporaneous as it was a part of a continuous transaction
Adopts the Ratten approach (spontaneity)
ONCA 1983
Minor issue: “Help, help, I’ve been murdered, I’ve been stabbed”  normally we would
edit out “I’ve been murdered” because cannot comment on a question of law (issue for
trier of fact)
Taken even further in Andrews (UKHL): including a statement made to the police about
who did the act
Business
Records
Why not a dying declaration? Foster was uncertain (possibly due to questions about
whether the victim knew she was dying)
No exception for business records at common law but rather an exception for declarations
made in the course of duty
(1) declarant was duty (only form of unavailability accepted at common law!)
(2) related to some act or transaction performed by the person in the OCB
(3) be made in the OCB under a duty to make it
(4) be made at or near the time at which the act or transaction to which it relates was
performed
Statutory exception: Canadian Evidence Act ss. 29-31 and BC Evidence Act s. 42
 n.b. Alberta is the only jurisdiction in Canada not to adopt similar provisions
Principled Approach to Hearsay
Myers v. Director
of Public
Prosecutions
Facts: stolen car scheme in which Myers bought wrecked cars and then swapped their
engine and chassis number from stolen cars; however, block number was stamped on the
engine and non-swappable
UKHL 1965
Problem: hearsay = records of the block number (witness = record keeper)
Reasons: (1) could not establish that the workers were dead to fit the declarations made in
the course of duty exception (the workers were anonymous); (2) no change to the hearsay
rule because it would not lead to certainty and finality
Ares v. Venner
SCC 1970
Dissent: essentially, it’s insufficient to leave a gap in the common law to prod legislative
response  the evidence was clearly reliable and therefore should be admissible
Facts: young skier breaks leg while skiing; break set at a local hospital; leg was getting
worse so sent to Edmonton hospital; leg amputated due to infection
Issue: were the nurses’ notes on the deteriorating condition of the leg admissible?
Decision: records admissible
Law 309: The Law of Evidence
G. Morgan (Foster, Spring 2013) | Page 27
Reasons: (1) follow dissent in Myers; (2) “150th exception to the hearsay rule” for hospital
records (instead of moving to a more general approach)
Argument that they were not hearsay:
 regardless of whether the nurses’ observations were accurate, they should have
been a warning flag to the Dr (and therefore contributes to the negligence
argument)  i.e. statements were not proffered for their truth but for their
existence
R. v. Khan
SCC 1990
Question: the nurses’ were present in court; is this approach only available if the witness
could have been cross-examined?  Khan
Facts: see facts from competency
Issue: as the child was incompetent to testify, could the mother testify to the statement
made to her by the child after the visit?
Trial: evidence not admissible as hearsay
ONCA: evidence admissible under spontaneous declaration exception
SCC: evidence was admissible under principled approach to hearsay
Reasons: (1) do not stretch spontaneous declaration exception out of shape; (2) consider
whether it was a) reasonably necessary, and b) sufficiently reliable; (3) necessary
because the child was incompetent
Threshold Issues
R. v. Smith
SCC 1992
R. v. B. (K. G.)
[KGB]
SCC 1993
Problem: was this relaxation in the rule just for kids?  Smith
The evidence’s necessity and reliability must be evaluated by the judge prior to going
 modified to be “threshold reliability” as it is ultimately a question to the trier of fact to
determine the ultimate probative value (reliability)
Concern about encroaching on the
Essentially the new model for hearsay is as follows:
(1) hearsay is presumptively inadmissible
(2) it may be admissible under one of the common law or statutory exceptions
(3) even if it is not admissible under an exception, it may still be admissible if the trial
judge finds it to be reasonably necessary and sufficiently reliable
Foster: this case flags the issue with having the trial judge make an assessment on
admissibility
 third phone was excluded using speculation about the third call (i.e. the danger of trial
judge considering reliability before it going to the trier of fact)
 problem: the first two calls say that he’s left but the third call says that he returned
 unsettling result: kind of need the third phone call to contextualize the first two
(especially because his defence was an alibi); perverse problem that the telephone calls
that put the accused away from the scene were admitted but that telephone call that put
him returning was excluded
Importance: how to introduce prior inconsistent statements where certain requirements are
established
Facts: two brothers got off the bus; one of the brothers was stabbed; three witnesses said
that their friend, KGB, told them that he thought he had stabbed the deceased
Evidence at trial: (1) statements of the three witnesses as to KGB’s statement; (2) victim’s
brother made a docket identification
Problem:
Previously studied
under competency
Law 309: The Law of Evidence
G. Morgan (Foster, Spring 2013) | Page 28
(1) the three witnesses recanted their statements  at the time of the trial, the
witnesses could be cross-examined on the statements but the statements could
not stand as evidence of what was asserted in the statements (i.e. only went to
credibility)
(2) docket identification was unsatisfactory (only a brief opportunity to see the
attacker, too much time had passed since the incident, inconsistencies between
his description at the time and his description at trial)
Trial result: acquittal (statements excluded)
CA: affirm trial decision
SCC: statements admissible
R. v. Hawkins
SCC 1996
Reasons:
(1) concerns with admissibility: a) unsworn evidence; b) inability to cross-examine
(2) procedure: request a voire dire to decide whether cross-examination on the
statement is permissible; if successful, then ask for the voire dire to continue to
demonstrate that the statement meets the KGB criteria
(3) in this case, the statements were made to police officers (persons of authority) 
establish on the balance of probabilities that the statements were voluntary
(because police questioning can be coercive) but does not need to be beyond a
reasonable doubt as not the accused
(4) KGB criteria
a. request voire dire to tender the statement that the witness denies
b. CEA s. 9, 10 or 11
c. indicia of reliability are present
 BoP on the party seeking admission (
Frequent flyer in the course: spousal exception; Criminal Code s. 715; principled approach
 eventually
Facts: see previous notes
Decision: admissible
Reasons:
(1) necessary
(2) reliable  made under oath and cross-examined by the same parties on the
same issue
(3) interesting twist: trial judge found that it failed the principled approach because
the probative value at the preliminary inquiry was very low (she was already
starting to recant so she was all over the map in the sworn statement)
 trial judge found that the probative value was too low to put it to the jury
 SCC clarified that threshold reliability ≠ ultimate reliability
(4) even if the trial judge finds it sufficiently reliable and necessary, it can be
excluded because of the prejudicial effect (discretion on the part of the trial judge)
Dissent:
(1) evidence should be inadmissible because it undermined the spousal competency
exception
 Coutoure (SCC 2007): out-of-court statement excluded because the statement
was made while they were married (i.e. definitely undermining the rule)
R. v. Starr
Foster: the principled approach obliges lawyers and judges to focus on the facts (as
opposed to the structure of the exception) but the difficulty is getting the results consistent
Not read because it’s long and Khelawon reverses it on an important point
Law 309: The Law of Evidence
SCC 2000
G. Morgan (Foster, Spring 2013) | Page 29
Issue in Starr: what happens to the exceptions?  in Starr, there was a statement against
interests; majority found that the exception did not meet the standards of the principled
approach (i.e. no requirement that the circumstances of the statement attested to its
reliability)
Q6: Mapara (SCC 2005)  with some modifications, this excerpt sets out the decision in
Starr and the law of hearsay in a nut shell):
1) hearsay rule is that hearsay is presumptively inadmissible unless an exception
applies
2) hearsay exceptions can be challenged to determine whether the exception is
supported by indicia of necessity and reliability
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
4) if hearsay evidence is not admissible under an exception, it may still be
admissible under the principled approach
R. v. Khelawon
SCC 2006
Gloss: some judges are going straight to the 4th step and they aren’t being slapped too
much by the CAs/SCC
Facts: Mr. Khelawon was the manager of a retirement home; he was charged with the
assault of five individuals who lived in the retirement home; the primary evidence was from
Decision: evidence inadmissible
Reasons:
(1) “The essential defining features of hearsay are therefore the following: (1) the
fact that the statement is adduced to prove the truth of its contents and (2) the
absence of a contemporaneous opportunity to cross-examine the declarant” (CB
249)
(2) constitutional dimension: an accused faced with unreliable hearsay evidence is at
risk of an unfair trial (i.e. a potential violation of section 7 of the Charter) 
stronger in the US where there is a constitutional right to confront the accuser
(3) how to surpass the reliability hurdle?
a. significant evidentiary support for the reliability of the statement (e.g., Khan
where there was the semen stain, proximity to the incident)
b. substitute for contemporaneous cross-examination (e.g. Hawkins where the
testimony in the preliminary inquiry)
(4) reversal of Starr: in Starr, the judge could only consider the circumstances
surrounding the making of the statement to determine reliability (¶215-16)  in
Khelowan, the SCC describes the proper approach as a “functional”
(discretionary) approach: “the trial judge must remain mindful of the limited role
that he or she plays in determining admissibility—it is crucial to the integrity of the
fact-finding process that the question of ultimate reliability not be pre-determined
on the admissibility voir dire” (¶93)
 Foster: problem in practise
(5) application to the facts
a) necessity was high (the victim was dead) but SCC criticized the Crown for
not obtaining commissioned evidence under the Criminal Code to preserve
the elderly victim’s evidence (which surely would have satisfied the principled
approach) (c.f. ¶104)
b) reliability was low: cook was disgruntled employee; Mr. S was sidetracked
during the video-taped evidence by complaints about the retirement home;
Mr. S had a diagnosis for paranoid delusions
Younger: Necessity + Reliability = 1 (i.e. greater necessity will decrease the need for
Law 309: The Law of Evidence
G. Morgan (Foster, Spring 2013) | Page 30
R. v. Baldree
reliability whereas greater reliability decreases the necessity requirement)
Importance: three bright people can still disagree on hearsay admissibility
ONCA 2012
Issues: was it hearsay; how to deal with implied assertions
Reasons (Watt):
(1) evidence wasn’t hearsay and therefore was admissible  no problem
Reasons (Feldman):
(1) admitting the phone call as evidence of drug dealing occurring in the house was
immaterial evidence  the defence had already conceded that drug dealing
occurred in the house
 rather, the evidence was admitted to establish that Baldree was the drug
dealer (and resided on the caller’s belief that Baldree was a drug dealer)
 this
(2) further concern was that there was only one call (more calls have been taken to
increase reliability / decrease prejudicial value)
Reasons (Blair):
(1)
Final point: defence counsel did not object to the admission of the telephone call
 majority: lack of objection is not fatal; constitutional requirement that a conviction
result from admissible evidence; evidence was key to the trial
 dissent: phone call was not necessary for conviction; conviction would occur
regardless
VI. Opinion Evidence
Lay Opinion
Introduction
Generally, opinion evidence is inadmissible
Lay opinion exception:
(1) something that the ordinary person would know  within common knowledge
(2) based on multiple perceptions (facts)
R v Graat
SCC 1982
Ex: eyewitness identification  leave it to cross-examination to parse out the factors that
contribute to the opinion that person A was the right person
Issue: was the police officer’s opinion that Graat was under the influence of alcohol
admissible?
 police officers are able to offer an opinion on the issue of the case
 before Graat, no witness was able to offer an opinion on the ultimate issue on the case
After Graat, lay witnesses and most expert witnesses can offer an opinion on the ultimate
issue with the two wrinkles:
(1) no opinion on domestic law
(2) rule against oath helping (i.e. an opinion on the credibility of another witness)
What about mixed law and fact?
 cannot express an opinion that an individual was negligent (question of law)
 in this case, impairment was deemed to be a question of fact (as opposed to a
question of law)  purely a matter of fact (merely complicating that Parliament
uses the “everyday” term to describe the legal term in the Criminal Code)
Law 309: The Law of Evidence
Dock
Identification
G. Morgan (Foster, Spring 2013) | Page 31
Two caveats:
(1) decisions by judges on whether an opinion is admissible are highly discretionary
(i.e. will be difficult to overturn on appeal)
(2) police opinion is entitled to no special regard  not testifying as experts but
rather lay witnesses with a lot of experience
 likely the accused argued that the police are not experts but acceptable as a
lay opinion with specialized knowledge
It is generally agreed by experts, lawyers and the judiciary that eye witness testimony is
weak evidence
Debates: (1) what juries should be advised about eye witness testimony (2) whether
expert evidence can be introduced to the limited reliability of eye witness testimony
Based on research, there is a significant body of literature on the proper procedure for
line-ups (and the conformity with procedure is used to undermine witness credibility
especially with witnesses who cannot do a dock identification and instead rely on their
prior identification)
R. v. Henry (BCCA 2012)  line-up + head-lock
Further reading: Elizabeth Loftus
Expert Opinion
Introduction
R v Mohan
SCC 1994
R v Abbey
ONCA 2007
Divided opinions: (1) vitally important and should be used more and more; and (2)
common law trial is at risk of becoming a wrestling match
Four Mohan criteria:
(1) relevance
(2) necessity in assisting the trier of fact
(3) the absence of another exclusionary rule
(4) a properly qualified expert
ONCA “upgrade” of Mohan  opinion is split on whether the re-jigging is consistent
(Foster: generally consistent, likely makes it more functional and useful)
Reasons: (1) some criteria operate as rules (pre-conditions for admissibility) while some
criteria operate as principles (contextual)
Stage 1: does the evidence sufficiently satisfy four pre-conditions? (¶80)
(1) the proposed opinion must relate to a subject matter that is properly the subject
of expert opinion evidence
(2) the witness must be qualified to give the opinion
(3) the proposed opinion must not run afoul of any exclusionary rule apart entirely
from the expert opinion rule; and
(4) the proposed opinion must be logically relevant to a material issue
 with (1) and (2), counsel must be careful with the definition of expertise: the expert
witness’ expertise must not be qualified too narrowly (but not too broadly either)
 area of most trouble for (3): character evidence rule (especially with psychiatrists, etc.)
 (4) is where Doherty JA most plays with Mohan as Mohan placed the gatekeeper
concerns / cost-benefit analysis in this criteria
Stage 2: gatekeeper stage  whether the evidence is “sufficiently beneficial to the trial
process to warrant its admission despite the potential harm to the trial process that may
flow from the admission” (¶76)
 benefits: probative value, cogency
Law 309: The Law of Evidence

R v Lavallee
SCC 1990
G. Morgan (Foster, Spring 2013) | Page 32
costs: “dazzle” jury, length of trial, complication of trial issues, prejudicial effect
n.b. factually specific and therefore admissibility varies from case to case
Example of expert evidence being used to excellent effect
Judicial history
 trial: jury acquitted Lavallee
 MBCA: ordered new trial
 issue: whether the defence of self-defence should have been put to the jury
(concern particularly in regards to statutory requirement of reasonableness &
common law requirement of imminence [of danger])
 SCC seems to interpret that the MBCA found Dr. Shane’s evidence
inadmissible because it was immaterial (it went to something improvable) or – if
material – the jury was not properly instructed to its use
Context in criminal law: SCC puts (or takes off) the gloss of imminence on the statutory
defence
Context in evidence law: admissibility of Dr. Shane’s expert opinion testimony
Dr. Shane’s testimony at trial
 familiar with Dr. Walker’s theory on battered women syndrome
 examined the accused to develop a psychiatric assessment
 classic scientific model: linked the theory to the facts (i.e. its application to
Lavallee)  evidentiary link (as the theory is meaningless unless
Novel science
The question of “novel” science
While not discussed explicitly in Lavallee, it was the first time that the SCC considered
battered women syndrome
Mohan: “expert evidence which advances a novel scientific theory or technique is subject
to special scrutiny to determine whether it meets a basic threshold of reliability and
whether it is essential in the sense that the trier of fact will be unable to come to a
satisfactory conclusion without the assistance of the expert. The closer the evidence
approaches an opinion on an ultimate issue, the stricter the application of this principle”
(CB 269-70)
History in US: Frye (USSC 1923)  general acceptability in scientific community as precondition to use in trial
Four factors interpreted from Rule 702 (federal rules of evidence, which operates to
overrule Frye) (Daubert):
(1) the evidence must be capable of being tested and has been tested
(2) the evidence should be subjected to peer review and be published
(3) the evidence should have a known or potential rate of error that can be testified
tied
(4) general acceptance in scientific community (Frye factor applied flexibly)
Issue: what (see the dissenting comments at CB 297
Why American context? the SCC has indicated that the law of Canada is similar to (see
R. v. J-LJ and R. v. Trochym)
What is new science? a) either the science is new; or b) the science is new to the courts
(Foster: likely the more practical postion)
Law 309: The Law of Evidence
Béland v. The
Queen
SCC 1987
G. Morgan (Foster, Spring 2013) | Page 33
Classic cases: science is not new but the way that the expert wants to use the science is
new (i.e. using a pedophile treatment program as a diagnosis model) OR old science that
has come under new scrutiny usually by a new scientific development (i.e. hair analysis
results overturned by DNA analysis) OR debunking the science behind reconstructed
memories (i.e. Elizabeth Laufless)
 n.b. the gatekeeper role is multi-faceted
 n.b. in the vast variety of cases, the
Science: polygraph
In a way, an example of an attempt to use a technique for a new purpose
 while the SCC is not admissible in court, frequently used as an investigative tool
by police
 Phillion: served 30 years in jail; released recently (case tried before Stinchcome,
which required full disclosure in serious cases; police had spoken to a service
station attendant outside of Ottawa who identified the individual; because of lack
of disclosure, defence did not have evidence supporting the alibi testimony)
Problem: expert evidence is restricted on the credibility of an individual evidence (as
credibility is the province of triers of fact)
Issues:
 trial efficiency  cause delay, disrupt trials
 violated the rule against oath helping and prior consistent statements
 credibility is an issue for the trier of fact AND not an area in which expertise is
required (i.e. no one is an expert in credibility)
Procedural and Reform Issues with Expert Opinion
Expert Opinion and Hearsay
R v Abbey
SCC 1982
Facts: accused was found with drugs in the Vancouver airport; defence: mental illness (i.e.
diminished responsibility)
Judicial history
 trial: judge found the accused met the requirements

Context in criminal law: availability of the NCRMD defence
Context in evidence law: Abbey did not testify but Dr. Vallance testified (including
information that Abbey provided to Dr. Vallance)  hearsay
Explanation for expert evidence: hearsay is admissible to show the basis of the expert’s
opinion but not for its truth
 ex: Collins
R v Lavallee
SCC 1990
Problem: “Before any weight can be given to an expert’s opinion, the facts upon which the
opinion is based must be found to exist”  general statements are difficult and this one
raised concerns about whether previously admitted evidence the old proposition was
admissible
Evidence considered: interviews with Lavallee; interviews with Lavallee’s mother; hospital
records; police statements
 hospital records were likely admissible under the business records exception;
statement was likely admissible as they were introduced by the Crown (and any other
evidence introduced by the Crown)
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The issue, therefore, was the Abbey issue: a lot of the facts of Dr. Shane’s opinion came
in through the mouth of Dr. Shane (i.e. not testified under oath)
Solution (Wilson J with a twist by Sopinka J.):
(1) an expert opinion is admissible if relevant, even if it is based on second-hand
evidence
(2) the second-hand evidence (hearsay) is admissible to show the information on
which the expert opinion is based, not as evidence going to the existence of the
facts on which the opinion is based
(3) where the psychiatric evidence is comprised of hearsay evidence, the problem is
the weight to be attributed to the opinion
(4) before any weight can be given to an expert’s opinion, the facts upon which the
opinion is based must be found to exist
Sopinka’s twist: the four propositions would allow for an opinion to be admissible without
probative value
a) evidence the expert relies on because it’s what the expert does (i.e. other
psychiatric opinions, relevant academic literature)
b) evidence the expert relies on that is provided by a member of the party who is not
testifying
The situation in b) is the problem in Abbey and ultimately it is the combination of a) and b)
in Lavallee that makes Dr. Shane’s opinion admissible  Foster: it probably wouldn’t have
been admissible if the statement and hospital records were not entered by the Crown
Why didn’t Lavallee or her mother testify?
 concern: defendants should not be able to enter through an expert facts that are not
cross-examined
Qualifications of Expert Witnesses
R v Marquard
SCC 1993
To avoid trial unfairness, an expert witness can only be cross-examined on contradictory
opinions if the witness a) is familiar with the cited work, and b) confirms that the work is
authoritative
 L’Heureux-Dubé (dissenting) would require a more flexible approach so as to not give
an expert the escape hatch of denying familiarity
Expert Opinion and Advocacy
Supreme Court
Rules Part 11
Rule 11-2  response to judicial concerns that experts were becoming advocates for their
side
and
New process: certify opinion & awareness of this statutory requirement
BC Evidence Act
ss. 10-12
n.b. BC Evidence Act provisions do not apply to civil proceedings (see s. 12)  i.e. apply
to administrative tribunals, etc.
VII. Credibility
Assessing Credibility
Introduction
Distinction: (1) is the witness telling the truth (i.e. providing accurate testimony)? and
(2) is the witness a truthful person?
 the second question is relevant to credibility only
Further issue: appellate review
 if the appellate court determines that the witness is not credible, the trial decision can
be reversed but it’s very, very rare
 Belnavis: often the trial has lost its juice by the time that it gets to the SCC (i.e. reading
Law 309: The Law of Evidence
R. v. N. (S.)
SCC 2012
G. Morgan (Foster, Spring 2013) | Page 35
a transcript rarely given the picture of demeanor)
Rare that the SCC gets to rule on demeanor evidence but minimal discussion of the
scientific doubts behind the credibility of demeanour (arguably problematic given how
highly we’ve valued it in terms of the defendant’s right to a full answer and defence)
 primary issue: how important is it for the trier of fact to see the face of a witness
Concern for the dissent and the concurring results: implication for the trial process of not
having a clear rule
Limits on Supporting Credibility
Limits on
Supporting
Credibility
Rule
Exceptions
Rule against oath helping: simple to state, more difficult to apply
Basic idea: witnesses are doing their best to tell the truth
 accordingly, until a witness’ credibility is attacked, evidence cannot be adduced to
support credibility (i.e. prior consistent statements)
 why? saying something 50x does not make it more true; waste of time if the
issue is not in dispute
Rule against oath helping:
A party cannot lead evidence where the relevance is limited to showing that one of the
party’s witnesses is a truthful person
(1) expert witnesses  Marquard
(2) good character of the accused (incl. reputation for truth telling)
(3) prior consistent statements (esp. fabrication)
(4) narrative
(5) statutory exceptions  Criminal Code section 715.1 and 715.2
Expert evidence
R v Marquard
Facts: see notes
SCC 1993
Issue: was the granddaughter burned by the accused on the stove or by herself on the
lighter?
n.b. Dr. Mian was the granddaughter’s treating physician AND a qualified expert on child
abuse
Decision: Dr. Mian’s testimony crossed the line
Reasons (majority): (1) non-bright-line distinction between an expert’s testimony on the
general factors that the jury should consider in assessing credibility and the expert’s
opinion on whether the specific individual was telling the truth; (2) concern that the
expert’s opinion would usurp the function of the jury (especially given the authority of the
expert)
Good reputation for veracity and truthfulness
Rowton Rule
R v Clarke
ONCA 1998
If character evidence will be introduced, it must be evidence of reputation (not personal
opinion as to the individual’s character)
Facts: see notes
Issue: five reputation witnesses were called to testify to the good reputation of the accused
and/or the bad reputation of the complainant (where two of the witnesses’ against the
complainant had axes to grind)
Three questions = pretty far from the issues in the case (i.e. very much secondary
materiality)
Decision: (1) problem to have the witnesses’ testifying to the veracity of the accused’s
oath before the accused’s credibility was attacked
Law 309: The Law of Evidence
G. Morgan (Foster, Spring 2013) | Page 36
Proposed solution: instructions to the jury
(1) distinction between reputation in the community vs. the capacity to tell the truth
under oath
(2) character witnesses do not hear all the evidence in the case and are only
provided an opinion on the reputation (which should not be deferred to with
respect to the truth)
Prior Consistent Statements
Introduction
Exceptions
R v D(D)
SCC 2000
Edgar Issue
Prior consistent statements do not add significant probative value (e.g. telling something
1000x does not make it more or less true than the first time); time consuming; need to be
admissible as a hearsay exception or the principled approach
a) prior identifications
b) recent fabrication
 example: accused was charged with being in possession of a stolen vehicle;
he told the police that he was a hitchhiker and the driver who picked him up
asked him to drive [i.e. he did not ]; when the Crown challenged his testimony on
the standard, he was permitted to testify that he had made the prior consistent
statement (and it was permissible to lead this evidence during the examinationin-chief because the accusation was implicit)
 Campbell: defence wanted to introduce the prior consistent statement during
the police officer’s cross-examination but the court drew a line here because the
accused had not testified yet so it was not consistent with present testimony 
needs to be introduced
 last death penalty case: defence of 1 man was that the homicide was
accidental (statement in witness stand); Crown did not cross-examine on recent
fabrication as the man testified to this in his excluded confession; in the
summation to the jury, Crown hinted to a recent fabrication; Crown/defence/judge
agree to submit that portion of the statement
c) recent fabrication in sexual cases & the presumption of hue and cry
 because the presumption that people raise hue and cry, a complainant who
did not complain at the first opportunity permitted an adverse inference that the
complainant’s credibility was poor
 doctrine of recent complaint: because of the adverse inference, the Crown
may introduce a prior consistent statement to rebut the inference
 1980s: Criminal Code section 275 abrogated the rules related to the evidence
of recent complaint
d) narrative
e) statutory exceptions
f) credibility and oath helping
Foster: consistent with the CA decisions that the textbook alleges were inconsistent
Decision (majority): expert evidence did not meet the necessity criteria because the law
was already that the adverse inference could not be drawn (and the jury)
 in the absence of other factors, expert evidence and/or prior consistent statements is
not necessary and therefore cannot be lead
 however, some wiggle room “A delay in disclosure, standing alone, will never give rise
to an adverse inference against the credibility of the complainant” (according to Foster,
this suggests that an allegation of recent fabrication may warrant the expert evidence per
the CA decisions)
Decision (dissent): necessity of expert evidence should be decided on a case-by-case
basis (i.e. no need to lay down the rule that no expert evidence can be lead if the only
issue is the absence of a prior complaint)
Accused persons often say exculpatory things out of court (i.e. upon arrest, during
interrogation) that they would like admitted to trial.
Law 309: The Law of Evidence
R v Edgar
ONCA 2010
G. Morgan (Foster, Spring 2013) | Page 37
However, the statements are out-of-court statements admitted for their truth  admissible
by the Crown as admissions but the accused cannot enter the statement without violating
the rule against prior consistent statements
Erosion of the rule:
(1) accused’s statement was relevant to his or her state of mind (i.e. relevant to
mens rea)
(2) when the Crown alleges recent fabrication
(3) mixed statements (i.e. partly inculpatory and partly exculpatory) must be admitted
wholly
(4) res gestae exception  police stop a car; accused is sitting in the back; police
pull out contraband from the front; accused exclaims “whoa! I’ve never
Commission of Inquiry into the Wrongful Conviction of Guy Paul Morin:
 Morin told the police consistently that he did not commit the crime but these
statements were not admissible
 Inquiry concluded that these statements should have been made available to the
jury
Exception for
narrative
R v Dinardo
SCC 2008
Edgar rule: if the accused is willing to testify (i.e. be cross-examined), the prior consistent
statements are admissible
 premise: the real concern with this evidence is that the accused can insulate him
or herself
 represents a significant change if it is sustained by the SCC
When common sense suggests that the statement is necessary but there is no known
exception under which the statement is admissible
Flip side: need for very careful judicial discretion
Facts: complainant was a person with a disability; alleged that the accused (taxi driver)
touched her sexually during a taxi ride; complainant contradicted herself on the stand;
Crown introduced evidence of prior consistent statements as part of the narrative
Decision: statements were inadmissible
Exception: “In some circumstances, prior consistent statements may be admissible as part
of the narrative. Once admitted, the statements may be used for the limited purpose”
Impeaching Credibility
By expert evidence
Toohey v.
Metropolitan
Police
Commissioner
UKHL 1965
Facts: three men were convicted of assaulted the youth; the youth was found in a
hysterical state surrounded by the three men by two police officers
“Breakthrough”  psychiatric evidence was new evidence (scientific/medical); analogized
to an expert testifying to impaired vision
By reputation evidence
R v Clarke
ONCA 1998
Historical context
 while textbooks acknowledged that reputational evidence was possible, there
were hardly any cases (awkward, expensive, distrusted by judges)
 position likely changed with the rise of allegation of abuse by children where it
often came down to credibility: the accused denying the abuse and the children
 Taylor: defence called 20 witnesses who would not believe the complainants
under oath and the Crown called 5-6 witnesses with expert witnesses, too 
problem: weeks and weeks of testimony just about credibility (not about whether
Law 309: The Law of Evidence
G. Morgan (Foster, Spring 2013) | Page 38
the assault occurred)
Facts: see above
Reasons: (1) building on the discretionary exclusion (probative < prejudicial) in Seaboyer,
the third question was not permissible; (2) third question usurped the role of the jury
By prior inconsistent statements (opposite party’s witness)
Canada
Evidence Act
Cross-examination as to previous statements
10. (1) On any trial a witness may be cross-examined as to previous statements that the
witness made in writing, or that have been reduced to writing, or recorded on audio tape or
video tape or otherwise, relative to the subject-matter of the case, without the writing being
shown to the witness or the witness being given the opportunity to listen to the audio tape
or view the video tape or otherwise take cognizance of the statements, but, if it is intended
to contradict the witness, the witness’ attention must, before the contradictory proof can be
given, be called to those parts of the statement that are to be used for the purpose of so
contradicting the witness, and the judge, at any time during the trial, may require the
production of the writing or tape or other medium for inspection, and thereupon make such
use of it for the purposes of the trial as the judge thinks fit.
Cross-examination as to previous oral statements
Red Light, Green
Light Process
(Moodle)
11. Where a witness, on cross-examination as to a former statement made by him relative
to the subject-matter of the case and inconsistent with his present testimony, does not
distinctly admit that he did make the statement, proof may be given that he did in fact
make it, but before that proof can be given the circumstances of the supposed statement,
sufficient to designate the particular occasion, shall be mentioned to the witness, and he
shall be asked whether or not he did make the statement.
[Assume a prior written statement, and the issue is whether the traffic light was red or
green. The witness (W) has testified in chief that it was green.]
1. Cross-examining counsel (C) firmly establishes W’s present testimony that the
light was green.
2. C suggests to W that the light was in fact red [there is no need to disclose the
prior statement at this point].
3. C asks W if she has previously made a statement to anyone that the light was
red.
4. If W admits she did make such a statement, C may produce the statement and
attempt to prove it by reading the relevant part to W or by placing it in her hands
and asking if she would like to “refresh her memory” and change her present
testimony. If W agrees that the previous statement is correct, that ends the
matter: her evidence on a material issue in the case is now that the light was red.
5. If W denies making the statement, and continues to maintain that the light was
green, C may then attempt independent proof of the statement under CEA, s.11
[up to now, everything has been pursuant to CEA s.10 (1)].
6. If W denies making the statement—or admits making it but will not adopt it as
true—the statement is not evidence of the colour of the light. It goes only to W’s
credibility as a witness [unless (a) W is a party to the litigation or (b) the principle
in R. v. B. (K.G.) (1993), 79 CCC (3d) 257 (SCC) – commonly referred to simply
as K.G.B.) applies.]
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G. Morgan (Foster, Spring 2013) | Page 39
By prior inconsistent statements (own witness)
Canada
Evidence Act
At common law, counsel could obtain a declaration of hostility to examine own witness as
a “hostile witness” but only if the witness’s demeanor was hostile.
Adverse witnesses
9. (1) A party producing a witness shall not be allowed to impeach his credit by general
evidence of bad character [i.e. do not put on stand just to impeach credibility], but if
the witness, in the opinion of the court, proves adverse, the party may contradict him by
other evidence, or, by leave of the court, may prove that the witness made at other times a
statement inconsistent with his present testimony, but before the last mentioned proof can
be given the circumstances of the supposed statement, sufficient to designate the
particular occasion, shall be mentioned to the witness, and he shall be asked whether or
not he did make the statement.
 some courts have interpreted the section as permitting cross-examination
generally
 Foster: likely safer to say that it permits cross-examination on the prior
inconsistent statement
 Figliola restricts the ability to cross-examine generally
 n.b. distinguish between hostility under common law and adversity under section
9(1)
McInroy and
Rouse v. The
Queen
SCC 1979
Previous statements by witness not proved adverse
(2) Where the party producing a witness alleges that the witness made at other times a
statement in writing, reduced to writing, or recorded on audio tape or video tape or
otherwise, inconsistent with the witness’ present testimony, the court may, without proof
that the witness is adverse, grant leave to that party to cross-examine the witness as to
the statement and the court may consider the cross-examination in determining whether in
the opinion of the court the witness is adverse.
 n.b. only applies to written statements
 problem: the existence of a prior inconsistent statement was insufficient to
establish adversity under section 9(1)
 Milgaard (SCC 1971): friend of Milgaard told
 while it was used for terrible injustice in Milgaard, it is still the process used
Facts: McInroy and Rouse were accused of killing a snitch with a cross-bow; McInroy’s
common-law spouse testified that they returned home and said that they offed the snitch;
the day before her testimony, Crown confirmed the testimony; when Crown asked on the
stand what she heard, she said that she did not remember
Section 9(2) procedure
(1) Counsel advises court that he desires to make a section 9(2) application
(2) court directs the jury to retire
(3) counsel should present the application and produce the alleged statement in
writing or the writing to which the statement has been reduced
(4) trial judge reads the statement and determines whether there is an inconsistency
(5) if the trial judge determines that there was an inconsistency, the Crown proves
the statement or writing (either through the witness or other necessary proof)
(6) If the witness admits the statement, counsel for the opposing party has the right
to cross-examine as to the circumstances under which the statement was made,
etc. to suggest that the counsel should not
(7) the judge determines whether counsel can continue under section 9(2)
Law 309: The Law of Evidence
G. Morgan (Foster, Spring 2013) | Page 40
By means of prior convictions
Canada
Evidence Act
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.

R v Corbett
SCC1998
evidence of prior convictions is evidence of the conviction only (i.e. used for
credibility but not to infer guilt, if accused)  different from section 71 of the BC
Evidence Act (which uses a prior conviction as prima facie evidence of an issue
in the trial)
 defence counsel can “soften the blow” (i.e. counsel can raise the convictions
during the examination-in-chief)
Problem: Canada Evidence Act s. 12 was enacted a) before the accused was competent;
and b) before the Charter of Rights and Freedoms
 “may be questioned”  interpreted as counsel’s discretion (not judicial
discretion)
Facts: Corbett was convicted of murder in 1971. Crown wanted to introduce his prior
conviction as part of his case (i.e. similar fact evidence) but it was inadmissible as similar
fact evidence. Accordingly, the Crown wanted to raise the first murder conviction when
the accused testified to “test his credibility”
Decision: general, wide discretion for the judge to exclude evidence
Reasons: (1) without this discretion, section 12 would violate the Charter; (2) factors =
nature of the previous conviction (fraud or dishonesty?); similarity to the present charge
(more similarity = more prejudice); remoteness; fairness to the Crown (if the defence
shreds the credibility of the Crown’s witnesses, it opens the door to “quid pro quo” for the
Crown)
Reasons (LaForest J. in dissent): (1) jury knew that Corbett was on probation, was dealing
drugs and could be cross-examined on all other aspects of his criminal record; (2) the
exclusion as similar fact evidence was a pretty strong indication of the prejudicial effect
Collateral Facts Bar
Introduction
The rule is not a cross-examination rule  applies to all examination-in-chief, too
Collateral fact = fact not directly connected or relevant to a material issue
The collateral fact bar means that a party cannot call evidence to contract answers of a
witness on collateral issue
Rule against
Collateral Facts
n.b. CEA section 12(2) is a statutory exception to the collateral facts rule as it allows the
cross-examiner to lead extrinsic evidence to contradict the witness
Two ways to formulate the collateral facts rule:
 Phipson: everything is collateral except facts relevant to material facts (i.e. if you
couldn’t introduce it in the case-in-chief, it’s irrelevant)
 necessitates exceptions (i.e. exception of bias to permit the introduction
evidence of the relationship to the accused)
 Wigmore: two types of non-collateral facts  (1) Phipson-type: material fact;
relevance beyond contradiction of the witness; (2) fact that directly discredits the
testimony of the witness (i.e. marriage to plaintiff on whose behalf the witness is
testifying)
Law 309: The Law of Evidence
Canada
Evidence Act
Exceptions
R v Melnichuk
ONCA 1995
G. Morgan (Foster, Spring 2013) | Page 41
McCormick’s lynch-pin exception (CB 378): lynch-pin = cross-examination on a collateral
fact but the collateral fact is so essential
 c.f. R. v. Brown (1861)  testifying as a witness to the crime; collateral fact
undermines an essential element of the testimony
 Foster believes that this exception is likely covered by Wigmore (which he
recommends)
Section 12 allows a witness’s criminal record to be entered (but note Corbett) and proved
Section 10 permits you to “prove” the statement if the subject matter is relevant to the
case therefore it’s likely not a true exception (because it’s relevant to the case.)
Facts: M charged with fraud (forging a mortgage and lying to the person who he was
borrowing from about the registration); M denied holding himself out as a charted
accountant; trial judge permitted Crown to call a witness to dispute that denial (witness
was his ex-wife); defence then calls 2 witnesses to rebut this testimony
Decision (dissenting): testimony was not admissible
n.b. SCC went with Doherty JA’s reasoning (dissenting at the ONCA)
Attorney-General
v. Hitchcock
UK Ex. Ch. 1847
Prof. Berger’s question: is Doherty JA correct to say that a document could have been put
the accused? (CB 376)  Foster: likely not reply evidence (as the witness could deny the
validity of the document)
Facts:
Best expression of the decision is not in casebook
 if we had infinite time, it might be possible to raise every possible inquiry into the
truth of statements but irreconcilable  need a line
 characterization of the witness’ proposed testimony: not evidence of either the
facts of the case or the witness’ credibility
Corroboration
Introduction
R v Baskerville
UKCA 1916
Murphy and Butt
v. The Queen
SCC 1977
Vetrovev v. The
Queen; Gaja v.
The Queen
Corroboration = everyday and technical meaning
What still requires corroboration?
 still require corroboration for perjury and treason
 some provincial statutes also require
Facts: accomplice case; jury had to be warned that it was dangerous to convict on the
uncorroborated evidence of the accomplice
Definition of corroboration: “evidence in corroboration must be independent testimony
which affects the accused by connecting or tending to connect him with the crime. In
other words, it must be evidence which implicates him, that is, which confirmed in some
material particular not only the evidence that the crime has been committed, but also that
the prisoner committed it” (CB 382)
Facts: M and B were charged with rape; complainant testified; M alleged intercourse was
consensual; B testified that he was not in the room
 evidence of the complainant’s condition (i.e. torn clothing) was capable of being
corroborated by M’s case (conceded intercourse) but not B’s case (denied
intercourse)
n.b. old Canadian law required corroboration for rape
Part of the trend in shifting from rules + exceptions to the more principled approach
Key: Wigmore quote (CB 389)
Law 309: The Law of Evidence
SCC1982


G. Morgan (Foster, Spring 2013) | Page 42
with co-accused, corroboration ≠ only evidence that implicates the accused
corroboration = multi-faced  “as Wigmore said, the matter of credibility is an
entire thing, not a separable one”
Vetrovev warnings = discretionary but SCC has noted that it can be an error of law to fail
to make a warning
Warnings possible for: jailhouse informants
Procedure post-Vetrovec:
 explanation of special scrutiny; wise to bear in mind the caution in assessing
testimony; specify why this testimony requires a warning; warning = similar to
corroboration warning w/o technicalities; caution that corroborating evidence
must be independent (but dangerous as this raises the problems with the old
rule)
R v B(G)
SCC 1990
n.b. Vetrovec limited to the common law warning and the statutory requirements control
the cases determined to require corroboration in the Criminal Code (CB 391)
Facts: young offender charged with sexual assault of kindergarten student; kindergarten
student provided evidence but no other evidence identified accused as perpetrator
Criminal Code section 586 provided at the time that no one could be convicted of a crime
on the uncorroborated, unsworn evidence of a child
SCC “managed” to interpret that it required the same level as the Vetrovec rule (although
the interpretation is likely strained given the wording of the provision)
VIII. Character, Similar Facts and Related Issues
Character Evidence
Introduction
Recall Watson who always carried a gun
Mainly concerned with the accused and mainly concerned with evidence of discreditable
conduct and behaviour
Concern: the accused might be convicted based on past activity; the accused is charged
with one offence (not a trial of his or her life going back 30+ years)
When is character evidence likely?
 dangerous offender hearing (where character is the only issue before the
accused)
 defamation (character of the plaintiff could be the only issue)
 sentencing
Character
Evidence Rule
How often does the accused put his or her character in issue?
 not very often given the potential risks
Foster’s formulation:
Subject to the similar facts rule, the Crown may not as part of its case-in-chief lead
evidence that the accused has engaged in discreditable or criminal conduct, or is of bad
character
However, the accused may lead evidence of character as circumstantial evidence of
innocence; and if s/he does, that “opens the door” for the Crown to reply with evidence of
bad character (McNamara)
Law 309: The Law of Evidence
Policy
Consideration
General
Framework
[Moodle]
R v McNamara
(No 1)
ONCA 1981
R v Bricker
ONCA 1994
First Method:
Reputation
R v Profit
ONCA 1992;
SCC 1993
Second Method:
Specific Acts
G. Morgan (Foster, Spring 2013) | Page 43
While character evidence is likely relevant, character evidence is precluded to prevent the
trier of fact from drawing the prohibited inference (e.g., past bad behaviour = guilt)
(1) Distinguish
a) the character of the accused,
b) the character of non-party witnesses,
c) the character of third parties and co-accused (McMillan), and
d) the character of victims of crime (Scopelliti, note exceptional rules for
complainants in sexual assault cases)
(2) Distinguish civil and criminal proceedings
 character evidence is not admissible in civil proceedings unless
character is a material issue (i.e. defamation)
(3) Distinguish character from habit (Watson), character as a material issue, and
character as circumstantial evidence of behaviour
(4) Distinguish different “types” of character evidence, such as evidence of particular
acts (e.g., Criminal Code section 666), evidence of reputation (Rowton), personal
opinion (Rowton), and expert (generally psychiatric) opinion (Mohan)
(5) “Locate” the proffered character evidence in the trial (e.g., does the issue arise in
the Crown’s case or that of the defence? In examination-in-chief or in crossexamination?) (Morris, McFadden)
Facts: 13 individuals and corporations were c
Issue: defence was examining S; S was questioned about the mandate of the business
manager; S advised that the mandate was to run the company legally; Crown was
permitted to treat this as bringing character into issue
What happens if the Crown, while cross-examining a defence witness, elicits a statement
in support of the defendant’s character?
Clear rule: only the accused can put his or her character in issue (i.e. cannot be done
inadvertently)
Recall: Clarke and the witnesses buttressing the accused’s truthfulness (and the
complainant’s propensity to lie)
Rowton Rule (CB 402)  prove character with evidence of general reputation in the
community
Facts: 22 witnesses were called by the accused, a principal of a school, to testify to his
good character (including morality)
Decision (ONCA): majority felt that the trial judge had not given weight to the testimony of
the accused’s high moral character (i.e. used to bolster credibility)
Decision (SCC): in these types of cases, character evidence is to be given little weight
because there is a difference between public reputation and private action (i.e. these
cases are the types in which the private activity would be private and not publically
available) [CB 412]
Recall: McNamara (No 1)
 now that the accused can testify, he or she may put character in issue with a
simple statement of past good acts (plug for legal history: remember that Rowton
was decided when the accused could not testify)
 Crown not bound to respond only with evidence of general reputation (i.e. can
cross-examine on a specific instance)
 CB 415: “We are unable to accept the submission …”  don’t get confused by
this paragraph because the discretion to exclude is the old Rae discretion (i.e.
pre-Corbett)
Law 309: The Law of Evidence
R v Lupien
SCC 1970
G. Morgan (Foster, Spring 2013) | Page 44
Criminal Code section 666 (CB 416)
 permits further information than CEA section 12 (i.e. can be questioned on the specifics
of the convictions when character is put in issue  increases exposure to the accused)
Facts: Lupien was a civil servant on business in Vancouver; homosexual activity was
illegal; Vancouver vice squad found Lupien in a room with a man dressed as a woman;
Lupien wanted to introduce evidence that he was, essentially, homophobic and therefore
should be believed when he said that he did not know she was a woman
Decision: evidence was, in this exceptional case, admissible
R v Robertson
ONCA 1975
n.b. a lot of the only cases deal with homophobia and are difficult to read from a
contemporary context
Facts: see notes
R v Mohan
Decision:
 violent/aggressive behaviour is not sufficiently distinct to warrant this type of
evidence
 juries are capable of making these determinations in the absence of expert
opinion on whether the person could do the violent/aggressive act
 coloured by the expert evidence rule where judges do not want to introduce expert
evidence unless the expert evidence is essential and/or indispensable
n.b. leading case on the admissibility of expert evidence
SCC 1994
Facts: see notes
R v Morin
Decision:
 essentially, what was alleged against Dr. Mohan was not so extraordinary that it
warranted expert evidence
 “Before an expert’s opinion is admitted as evidence, the trial judge must be
satisfied, as a matter of law, that either the perpetrator of the crime or the
accused has distinctive behavioural characteristics such that a comparison of
one with the other will be of material assistance in determining innocence or guilt”
(CB 421)
n.b. previously studied for the jury charge on a reasonable doubt
SCC 1988
Facts: forensic psychiatrist was called to give evidence of Morin’s schizophrenia
R v McMillan
Decision:
 not a loophole in which to enter evidence that would not be admissible under the
similar fact rule
Facts: see notes
ONCA 1975
R v Scopellitti
ONCA 1981
Decision:
 risk implicit in pointing the finger at someone else is putting the accused’s
character in issue (not automatic – fine line between attacking the Crown’s case
and putting character in issue)
 accused is permitted to adduce evidence of the third party’s disposition but there
needs to be some link (relevance) to the case)
Facts: see notes
Issue: admissibility of the bad character of the deceased when the details of the bad
character were unknown to the accused
n.b. complainants in sexual assault cases (see Criminal Code section 276) have different
Law 309: The Law of Evidence
G. Morgan (Foster, Spring 2013) | Page 45
standards
What does this mean for the accused? Does it put the accused’s character in issue?
 MBCA: never puts the accused’s character in issue
 other CAs: left to the discretion of the trial judge (depends on the facts of the
case)
Danger of reputation evidence in a trial:
 nothing in principle prevents the Crown from saying “you know the accused
well?”; “what did you think of the rumours that were circulating that he assaulted
his wife?”  discredit reputation witness + admit an unfavourable fact about the
accused
 the US SC did not bar this type of evidence (even if they did not like it)
Similar Fact Evidence
Similar Facts
Rule
Introduction
Makin v Attorney
General for New
South Wales
JCPC 1894
R v Smith
UKCA 1915
R v Straffen
UKCA 1952
Sweitzer v. The
Queen
SCC 1982
Although similar fact evidence is presumptively inadmissible, this presumption can be
rebutted if the Crown satisfies the trial judge, on a balance of probabilities, that in the
context of the particular case the probative value of the proffered evidence with respect to
a particular issue outweighs it potential prejudicial effect and thereby justifies its reception:
Handy
It’s a work-around to get evidence in with significant probative value when the accused
has not put his or her character in issue
n.b. need to determine what the issue is in the case (i.e. identity, actus reus, mens rea)
Was the evidence of the other infants’ bodies found in their previous homes admissible as
evidence?
Two-sentence formula that achieved almost statutory force:
“It is undoubtedly not competent for the prosecution to adduce evidence tending to shew
that the accused has been guilty of criminal acts other than those covered by the
indictment, for the purpose of leading to the conclusion that is accused a person likely
from his criminal conduct or character to have committed the offence for which he is being
tried. On the other hand, the mere fact that the evidence adduced tends to shew the
commission of other crimes does not render it inadmissible if it be relevant to an issue
before the jury, and it may be so relevant if it bears upon the question whether the
acts alleged to constitute the crime charged in the indictment were designed or
accident, or to rebut a defence which would otherwise be open to the accused.” (CB 438)
Facts: see notes
The similar fact evidence was adduced to contradict the defence’s claim that it was an
accident (i.e. that the same thing happened to his subsequent two wives)
Facts: see notes
Issue: not propensity to strangle girls but rather a propensity to do the activity in very
specific ways (i.e. calling cards)  e.g., not that he was a strangler but that he strangled
this girl
Procedurally, the Crown may choose to join a number of counts together. It may be
simple (i.e. three charges arising from the same evidence and the evidence is admissible
on all charges). However, where each charge relates to a different incident, the evidence
on each count is not necessarily admissible on the other counts (i.e. can only consider the
evidence on each count). The defence will then apply to sever the case.
In this case, the 15 charges were severed and the Crown proceeds on charge 1.
However, the Crown then applied to introduce the evidence of the other 14 charges as
similar fact evidence. This evidence was essential as identity was an issue in charge 1.
Law 309: The Law of Evidence
R v Arp
SCC 1998
R v Handy
SCC 2002
G. Morgan (Foster, Spring 2013) | Page 46
Decision: new trial ordered because 11 of the 14 incidents did not have identification 9the
other 3 incidents were admissible as similar fact evidence because there was evidence
linked the accused to the incidents)
 the net was cast too wide  these 11 incidents were admitted on the coattails of
the other
 “I would confine the admission of such evidence to cases where there is some
evidentiary link, direct or circumstantial, with the accused”
Key case for identity similar fact evidence
Similar to older cases that required a “calling card” or “striking similarity” but Arp
broadened slightly to either a “signature” or a number of similar actions/facts  continued
application is therefore borderline
Historical issue: is evidence that only shows propensity never admissible or can it be
exceptionally admissible?
Probative value = (1) strength of the evidence that the similar facts happened; (2) the
extent to which the similar fact evidence supports the inferences that the Crown wants to
the trier of fact to draw; and (3) the extent to which the similar fact evidence is a material
issue
Prejudicial value = moral prejudice (the concern that the prohibited inference will be made
or that the jury will punish he accused for past unpunished deeds) + reasoning prejudice
(unduly complicating the trial with additional facts and issues; asking the accused to
defend periods of life not at issue in trial)
Key issue: collusion, which goes to the heart of the probative value
R v McFadden
BCCA 1981
Air of reality of collusion triggers burden of proof on Crown to show that there was no
collusion
Facts: McFadden was charged with first degree of murder. The Crown’s theory, and thus
material issue, was that this was a murder that occurred during a sexual assault or that it
was planned and deliberate. During trial McFadden admitted that he had killed the
complainant but claimed he had no memory of it. He testified there was an altercation
regarding the repair of a broken window and that he did not remember anything after that
until discovering what he had done. During trial, the Crown tried to get in as part of their
case in chief was the “Mrs. Pearce incident” where the accused had, allegedly, suggested
to Mrs. Pearce to pay for the work he had done via sex.
Issue #1: Character evidence
 During cross-examination, McFadden said that he had the most beautiful wife in
the world, and worships the ground she walks on. It is THIS statement that the
Crown applies to have the court declare that his character is now in issue (the
McNamara). Crown can always cross-examine on credibility, but can only
examine on character if the accused puts it in issue or if the case is the kind
where character is the issue.
 The court permitted the Crown to rebut evidence of good character
Issue #2: Collateral fact or similar fact evidence;
 Was the “Mrs. Pearce incident” a collateral fact, and thus not admissible? If the
Pearce incident was SFE then it wouldn’t be collateral
 The trial judge said this evidence was not SFE and kept it out for that reason
(and crown did not appeal that decision). This was not SFE. Identity was not at
issue. Thus the BCCA determined that if the trial judge found this was not SFE
Law 309: The Law of Evidence
G. Morgan (Foster, Spring 2013) | Page 47
then it had to be collateral. The crown cannot rebut collateral evidence.
The defense was able to show, via the evidence of the psychiatrist, that the accused was
the kind of person to act impulsively and violently if crossed, which supported that the
murder was not planned as required for first degree murder. Moreover, there was no
evidence of a sexual assault on the body + the improperly adduced evidence of Mrs.
Pearce showed that while he suggested it, when told no, he made no further advances,
which also goes against first degree murder.
Note: character rebuttal evidence is still required to be evidence that goes to the general
reputation of the accused. This may include instances, at times, of previous convictions or
specific similar fact evidence but that this particular incident was a collateral fact.
Consequence: at re-trial the Pearce evidence is kept out and McFadden is convicted of
first degree murder again.
Law 309: The Law of Evidence
G. Morgan (Foster, Spring 2013) | Page 48
PART III: EXCLUSIONARY RULES BASED ON POLICY
IX. Confessions, Evidence & the Privilege against Self-Incrimination
Pre-Trial Right to Silence
Common law
Foundational route: if you aren’t under an obligation to do something and you don’t have
to speak to the state unless you chose to do so
With limited exceptions (i.e. the requirement to provide your driver’s license and insurance
papers under the Motor Vehicle Act), this principle continues in Canadian law
The principle relates to the right to not self-incriminate, and it applies right across the
board when the power of the state is being exercise even nominally (i.e. does not start
with arrest but with first contact with the state)
R v Turcotte
SCC 2005
[not in CB]
When there is a right to silence, there is no penalty to not speak (i.e. cannot draw an
advesrse inference from the choice to not
Leading case when the accused invokes the right to silence
Facts: Turcotte arrives at the police station and tells the police to send cars and an
ambulance to the farm that he was working. He tells them to put him in jail and that there
is a gun in his truck. He refuses to tell the police what was waiting at the scene (i.e. he
selectively spoke to the police.) At the farm, the police found three people killed with an ax
and Turcotte was The trial judge viewed this silence as post-offence conduct.
Decision: new trial because Turcotte had the right to silence
Problem: the Crown needed to reproduce the conversation as there was limited evidence
and Turcotte’s statements (when he provided them) were relevant.
 Accordingly, the trial judge should have issued a limiting statement ot th ejourny
(i.e. the silence does not support an inference of guilt)
Section 7
In other cases, the nature of the defence might make the silence relevant (i.e. not
providing alibi information despite claiming that he has an alibi). A limiting instruction still
applies.
Jurisprudence suggests that section 7 supports a right to silence under the Charter.
Common Law Confessions Rule
Classic
statement:
Ibrahim
Ibrahim v. The King, JCPC 1914
“It has long been established as a positive rule of English criminal law, that no statement
by an accused is admissible in evidence against him unless it shewn by the prosecution to
have been a voluntary statement, in the sense that it has not been obtained from him
either by fear of prejudice or hope of advantage exercised or held out by a person in
authority” (CB 508)

Present rule:
Oickle
early dialogue focused on reliability of the statements (Foster: note that
reliability ≠ voluntariness)
 some exclusions, however, surrounded fairness and whether the confession was
obtained in a way that respected the accused’s right to silence (i.e. on the
grounds that it wasn’t “cricket”)  likely the concern that the confession was
admissible but the accused could not testify under oath in his own defence
(Ferguson’s summary from Crim)
For statements made by an accused to a person in authority to be admissible, the Crown
Law 309: The Law of Evidence
Four Types of
cases
(1) Threats or
Inducements
(CB 509-10)
G. Morgan (Foster, Spring 2013) | Page 49
must establish, beyond a reasonable doubt, that the accused’s choice to speak to the
authorities was voluntary in the sense that it was not overborne by threats, inducements,
oppressive circumstances, or the lack of an operating mind. Police trickery that would
“shock the conscience of the community” is also prohibited, even though it may not violate
the Charter right to silence and is not otherwise involuntary.
(1) classic Ibrahim case: threats or inducements
(2) atmosphere of oppression
(3) operating mind
(4) policy trickery that would bring the administration of justice into disrepute AND
would shock the conscience of the community
R v Leblanc (BCCA 1972)
 no contradiction when accused said no bail if no answer  involuntary
R v Letendre (BCCA 1979)
 officer said that he was getting mad, accused “got scared”  involuntary
R v Parsons (NFCA 1979)
 statement after told no statement = held over weekend  involuntary
R v Hayes (ABCA 1982)
 better to answer questions and tell the truth now  voluntary
R v Reyat (BCCA 1993)
 accused in the Air India bombing; significant admission obtained; although some
statements were oblique threats, the BCCA affirmed the trial judge’s decision to
admit the confession  voluntary
(2) Atmosphere
of Oppression
(CB 515-16)
(3) Operating
Mind Cases
(CB 510-514)
R v S (SL) (ABCA 1999)
 police’s statements suggested to the accused that rehabilitation required a
statement that would how the officer that he was on the right track 
involuntary
Hobbins v. The Queen (SCC 1982)
 subjective nature of the accused is not sufficient to sustain a finding of an
atmosphere of oppression
 need objective external circumstances
R v Serack (BCSC 1974)
 accused did not have any clothes on during the questioning
 while it was not a problem to take the clothes, it was inappropriate to take him
wearing only a blanket through the public areas of the station to the interrogation
room
 “a man’s trousers are, in a situation such as this, essential to his dignity and his
composure” (CB 517)
 the Crown did not establish that the atmosphere was free of oppression
Examples: extreme intoxication or medical impairment
Ward v. The Queen (SCC 1979)
 Ward was knocked unconscious and was interrogated immediately after
regaining conscious (likely while in a state of shock)
Horvath
 H accused of murdering his mother
 H was interrogated by a skilled RCMP interrogator
 Court found that the interrogation was so successful that H had been
Law 309: The Law of Evidence

(4) Police
Trickery
(CB 490)
Statements
Caught by the
Rule
Persons in
Authority
R v Oickle
SCC 2000
inadvertently hypnotized H
Confession excluded as not a product of an operating mind
R v Whittle (SCC 1994)
 Whittle was schizophrenic and ultimately found to have an operating mind
despite his mental health challenges
 Operating mind test: “requires that the accused possess a limited degree of
cognitive ability to understand what he or she is saying and to comprehend that
the evidence may be used in proceedings against the accused. Indeed it would
be hard to imagine what an operating mind is if it does not possess this limited
amount of cognitive ability. In determining the requisite capacity to make an
active choice, the relevant test is: Did the accused possess an operating mind? It
goes no further and no inquiry is necessary as to whether the accused is capable
of making a good or wise choice or one that is in his or her interest” (CB 514)
These cases are distinguished from the other three because it’s less concerned about
reliability and more concerned about the conduct of persons in authority
R v Rothman (SCC 1981)
 Proposition #1: confession is inadmissible if “nothing said or done by any person
in authority could have induced the accused to make a statement which was or
might be untrue” (CB 494)
 Proposition #2: confession is admissible if “its use in the proceedings would, as a
result of what was said or done by any person in authority in eliciting the
statement, bring the administration of justice into disrepute” (CB 494-5)
 later clarifies that this conduct must “shock the conscience” of the community
(i.e. impersonating a clergy member, shooting a diabetic with a drug and
pretending that it is insulin)
Common law confessions rule is triggered by statements made by the accused to persons
in authority (i.e. not your mother or your spouse—although perhaps if either of them is a
police officer!)
R v Hodgson (SCC 1998)
General proposition: “anyone formally engaged in ‘the arrest, detention, examination or
prosecution of the accused’” (CB 498)

Proof required to
establish
voluntariness
G. Morgan (Foster, Spring 2013) | Page 50
Rothman: undercover police officer pretends to be a trucker in the cell with R; R
initially thinks that he is a narc but eventually decided that ; classical common law
decision that despite the fact that the trucker was a police officer, R did not
know that the trucker was in a position of authority so threats or inducements
would not have the same effect as a person in authority
Should the trial judge know that it was a person in authority and held a voir dire on his or
her own accord?
 trial judge should have recognized it in Wells (closer to the police) but not in
Hodgson
Crown must establish beyond a reasonable doubt and in light of all the circumstances that
the will of the accused is not overborne
n.b. there is case law that supports a new trial if the Crown does not disclose all the
circumstances, e.g. a gap between (but less of a problem post-Stinchcombe)
Facts: Oickle was a volunteer fireman; police were investigating him for a series of fires;
he voluntarily underwent a polygraph; police advised him that he failed
Decision: majority of the SCC found the confession admissible
Law 309: The Law of Evidence
G. Morgan (Foster, Spring 2013) | Page 51
Defence arguments:
(1) police improperly played down the seriousness of the crime  SCC: played
down the moral seriousness of the crime but did not play down the legal
seriousness
(2) “package deal”  SCC: the accused was trying to get this
(3) offered psychiatric help  SCC: no quid pro quo (i.e. not tied to the confession)
but rather generally offered
(4) “it would be better” phraseology  SCC: while in the past this might have been
enough to excluded, these mild inducements would not overbear his will
(5) alleged threats against Oickle’s fiancée  SCC: significant enough relationship
to induce a false confession if threatened but not threatened in this case
(6) atmosphere of oppression  SCC: nothing traditionally associated with
oppression (i.e. woke up on his own after 4 hours, fed and given water, allowed
access to the washroom)
(7) polygraph  SCC: mere failure to tell the polygraph is inadmissible ≠ involuntary
Arbour J’s dissent: focused on the atmosphere of oppression and the polygraph (wanted
rules to govern use of polygraph)
Confessions Rule and the Charter
R v Wray
Rex v. St. Lawrence affirmed in Wray
Facts: involuntary confession (parts of which were confirmed
Sweeney
No broad discretion to exclude  no longer the rule
Charter section 7
CB 536
Facts: interrogation that violated section 7 of the Charter
Singh  common law confessions rule and section 7 are functionally similar
Hébert
CB 540
However, in Sweeney, section 7 functioned to deal with the derivative evidence
Section 7 = undercover interrogations (recall Rothman where the confession was
admissible under the common law confessions rule
Facts: similar facts to Rothman
Decision: while admissible under the common law confessions rule, H had said that he
didn’t want to talk to the police and the undercover officer elicited a statement
Limitations:
 protects people from having statements elicited against their will
 however, contextual: (1) nothing prohibits questioning in the absence of counsel
when counsel has been retained (only about); (2) police persuasion, short of
depriving the choice, does not infringe the right to silence; (3) does not affect
voluntary statements made to fellow cell mates (only eliciting statements); (4)
distinguish between undercover officers who are “hanging out” vs. eliciting; (5) if
if section 7 is violated, exclusion is based on section 24(2) and is not automatic
(as it is in the common law confession rule)
Oickle
Accordingly, admissibility was still determined by Charter section 24(2)
Should the common law confessions rule be constitutionalized?
Broader protections than the Charter:
Law 309: The Law of Evidence



G. Morgan (Foster, Spring 2013) | Page 52
common law rule operates in all interactions with the state (not just under
detainment)
automatic exclusion under the common law confessions rule
burden of proof at common law is on the Crown
S. 24(2) of the Charter
Exclusion of
Evidence under
the Charter
Compromise position:
 no automatic exclusion
 however, might be excluded
Section 24(2) Where in proceedings under subsection (1), a court concludes that evidence
was obtained in a manner that infringed or denied any rights or freedoms guaranteed by
this Charter, the evidence shall be excluded if it is established that, having regard to all the
circumstances, the admission of it in the proceedings would bring the administration of
justice into disrepute
Collins: not a remedy but to prevent further disrepute
Standing
Obtained in a
Manner that
Infringed the
Charter
Prerequisites:
(1) apply to a court of competent jurisdiction to establish that his or her rights were
violated  court of competent jurisdiction = trial court
(2)
Can a criminal defendant complain about evidence admitted that violated someone else’s
Charter rights but not your own?
 e.g., illegal search of gf’s apartment finds the accused’s drugs
 majority at the SCC: violation of a third party’s rights does not have an impact on
your own rights (Edwards)
 counter argument: should not be able to violate another party’s rights to get
leverage on someone else, knowing that it is would not be permissible against
that person
Obscure (Harrer and Perrier):
SCC raised the possibility that the court could nonetheless exclude evidence under
section 7 and 11(d) [fair trial provisions]
Is there a causal requirement between the infringing action and how the evidence was
obtained?
While there may be a causal connection (and that would meet the Charter requirements),
there must be a temporal connection (i.e. part of the same course of conduct)
 accordingly, rarely a big issue
Example:
(1) 1st interview = rights breached + inculpatory statements
(2) 2nd interview = 10(b) right breached + inculpatory statements
(3) 3rd interview = no breach but referenced inculpatory statements of previous two
interviews
 evidence was related to the breach
R v Collins
Example:
(1) illegal perimeter search used to obtain warrant
(2) arrest a bunch of people, one of whom agrees to give evidence for the Crown
 evidence was not related to the breach
Recall: hearsay
SCC 1987
Facts: RCMP was investigating Collins and others re: heroin use; officer used a throat
Law 309: The Law of Evidence
G. Morgan (Foster, Spring 2013) | Page 53
hold to prevent Collins from swallowing drugs (which she held in her hand); he asked her
to release the drugs and she did; her arrested her
Decision:
 point of 24(2) is to prevent further disrepute by admitting unconstitutionally
obtained evidence
 test for disrepute = decisions of this nature cannot be left to the majority
 three categories:
(1) trial fairness  type of evidence and its reliability; conscriptive evidence
(2) seriousness of the breach  could the evidence have been obtained without
a Charter breach; what process lead to the breach
(3) effect on the administration of justice if the evidence is excluded  nature
of the offence vs. nature of the breach
Crown argued for (3) to be the test in Rothman (“shock the conscience of the community”)
carried over to the effect on the administration of justice
Stillman
However, the SCC adopted a lower threshold:
 difference between the French and English versions (“would” instead of “could”)
 Rothman ≠ Constitution  higher threshold there than here (where the police
conduct violates the Constitution)
Two box theory
R v Grant
Was evidence conscription?
(1) non-conscriptive  go to Collins (2) and (3)
(2) conscriptive (including derivative)
a) discoverable  go to Collins (2) and (3)
b) non-discoverable  generally excluded without considering Collins (2) and
(3)
Leading case for sections 9, 10 and 24(2)
SCC 2009
Facts: police officers had a hunch that G was doing something wrong; detained in violation
of section 9; obtained gun in violation of section 10(b)
Decision:
 trial fairness is removed from the categories as it is the overarching goal of the
process
 new model
(1) seriousness of Charter-infringing state conduct
(2) impact on the Charter-protected interests of the accused
(3) society’s interests in the adjudication of the case on its merits
 seriousness of the offence cuts both ways (i.e. increases the impact on
the accused’s liberty interests but also increases society’s interest in
prosecuting the offence given the impact on the community)
What changed?
 pre-2009, it was rare for material obtained in violation of 10(b) to be admitted
given the Collins/Stillman framework
 bodily evidence (treated as conscriptive in Stillman) is likely more readily
admissible
¶111: each case must be ventured on its own facts but an invasion of the body
deliberately infringed will be less likely to be admitted while something like a breathalyzer,
Law 309: The Law of Evidence
G. Morgan (Foster, Spring 2013) | Page 54
when innocently infringed, will be more likely to be admitted
Application:
(1) while slightly coercive, not abusive
(2) serious impact as non-discoverable and deprived opportunity to make meaningful
choice to speak to police
(3) reliable but serious offence  somewhat neutral
Evidence admissible  deference to trial judge unless palpable error
Companion case: Harrison
Facts: police officer sees a car without a license plate on the front; sees Alberta plates on
the back; despite this, pulls the car over on a hunch; finds 35 kg of cocaine
Application:
(1) serious behaviour; credibility of officer questioned by trial judge
(2) significant but not egregious
(3) reliable and while society is interested in charging serious offences, the serious
offences must occur in a trial system “above rapproch”
Evidence excluded  trial judge’s comments about “pale in comparison” risked turning
24(2) into a contest between police and accused’s misdeeds
Calder
CB 590
n.b. empirical evidence does not currently show a significant difference in rates of
exclusion
Once a statement has been found to violate the common law confessions rule, it is
inadmissible for all purposes (neither for the Crown’s case or in cross-exmaination of the
accused when it contradicts the original statement)
 hence why the Crown often voir dire the statement to determine that the statements are
voluntary
Facts: officer suspected from purchasing sexual services from an under-age prostitute;
interviewed by two officers who cautioned him on his statements; he asked what was up
with the caution; did not answer; statement was inadmissible under Charter section 10(b);
testified at trial differently than this statement; Crown asks to cross-examine on the
previously inconsistent statement that was ruled inadmissible
Coté
Decision:
 Sopinka (majority): in all but the rarest of cases, you will not be able to crossexamine on a statement obtained in violation of the Charter
 LaForest (concurring): unclear what these “rarest of cases” are, and hard to
imagine what they will be
 McLachlin (dissent): sometimes the truth is more important that the Charter
violation
Does Coté modify Grant? Or is it deference to the trial judge’s decision?
Privilege against Self-Incrimination
Two branches
(1) non-compellability of the accused by the Crown at his or her trial  Canada
Evidence Act section 4 and Charter section 11(c)
(2) common law privilege against witnesses’ answering questions that might selfincriminate (c.f. 5th Amendment)
However, there was one significant difference in Canada. In the 1890s, statute converted
the common law privilege in (2) to a statutory protection under Canada Evidence Act
Law 309: The Law of Evidence
Criticisms of
section 5
Dubois
Still good law
G. Morgan (Foster, Spring 2013) | Page 55
section 5
 likely only a witness who could afford to hire a lawyer would be aware of this
provision
 possibly very practised and experienced criminals would also be aware, too
 however, the majority of witnesses would not be aware of the protection of
section 5 (and therefore not be able to invoke its protection)
Solution: expand the protection under the Charter to remove the inequality
Trial 1: D testifies
 on appeal, a new trial is ordered
Trial 2: Crown files D’s testimony as part of its case-in-chief (e.g., an admission and no
trigger of the confessions rule because it was made voluntarily in court). D does not testify.
 appeals conviction again
Significance: SCC accepts that a re-trial is another proceeding for the purposes of section
13 of the Charter (e.g., rejected the common learning of the Bar that a re-trial was only a
stage in the same continuous proceeding)
Decision:
 allowing the Crown to enter the testimony from trial 1, it is doing indirectly what it
cannot do directly (i.e. making
 section 11(c) and (3) of the Charter are triggered
Leading decision in the US (1968):
 defendant who chooses to testify waives the right against self-incrimination
 independent of the fact that the defendant may have been compelled to testify because
of unlawfully obtained evidence
Mannion
overruled
Sole dissent: McIntyre
T1: Mannion testifies. When he spoke with the police officer, he said that he knew that he
was being questioned about the rape. Issue in this trial was whether his choice to leave
town reflected a “consciousness of guilt”
T2: appeal ordered a new trial
T3: Mannion testifies as he did at the first trial but changed his story slightly (i.e. did not
testify that he knew it was about a rape.) Crown asked permission to cross-examine on his
trial 1 testimony, and permission was granted.
While Dubois decided that this testimony could not be part of the Crown’s case, Mannion
asked whether it could be used for cross-examination
This case was an unanimous decision with the decision written by McIntyre J.
Decision:
 as an extension of Dubois, the testimony could not be called in crossexamination
 the evidence was called for the purpose of implicating Mannion (i.e. to support
the
Kuldip
n.b. Henry: Mannion focused on the purpose of the cross-examination (as opposed to the
purpose of section 13)
T1: K testifies that he reported it to a police officer
Law 309: The Law of Evidence
Yes and No
G. Morgan (Foster, Spring 2013) | Page 56
T2: K testifies differently because it turns out that the police officer was not
Decision:
 distinction between a cross-examination to incriminate the accused (which
violates section 13) and a cross-examination to impeach the accused (which
doesn’t violate section 13)
Noël
This distinction does not resonate with the previous decision in Mannion
T1: trial of N’s brother for the murder; N testifies as a witness (not the accused in this
case) and invokes section 5 of the Canada Evidence Act
Henry
T2: trial of N for the murder; N testifies as the accused; Crown allowed to cross-examine
on the testimony for T1 on the grounds that it was focused on credibility
The SCC rejects the distinction between cross-examination for credibility and crossexamination for incrimination (e.g., there really isn’t a difference between Manion and
Kuldip)
Henry both narrows and broadens the ambit of section 13
 narrows  denies the Henry, Mannion and Kuldip-type accused from availing
themselves of section 13 because the testimony was not compelled (e.g., they
voluntary chose to testify in the first trial)
 broadens  in a Noël-type situation, the testimony (as examination-in-chief AND
cross-examination)
 caveat: admissible for perjury trial
Foster: Henry simplifies, clarifies and rationalizes 20 years of confusion (which entailed
both overruling the unanimous decision in Mannion and reverses itself on the distinction in
Kuldip)
Nedelcu
1st proceeding = examination for discovery in the civil lawsuit brought by the person on his
motorcycle who was injured
2nd proceeding = criminal trial
In this a Noël or a Henry? More like Noël because he was compelled as a witness in the
civil proceeding  while he voluntarily filed a defence and showed up, he
Recap
CB 610
(1) use immunity under section 13
(2) section 7 confers derivative use immunity (the Sweeney circumstances)
(3) constitutional exemption
 can you quash a subpoena on the grounds that it is only leveraged to get you
to perjure yourself?
 can an ordinary witness invoke the protections of accused to just not testify on
the grounds that use or derivative use immunity will not apply
 SCC foggy on what the solution would be (“constitutional exemption”)
 old problem: use an institutional avenue to get the accused under oath (e.g.,
coroner’s inquest or Royal Commission)
Law 309: The Law of Evidence
G. Morgan (Foster, Spring 2013) | Page 57
X.
Privilege and Related Issues
Introduction to Privilege
Introduction
Privilege generally applies to things that should be kept confidential. However, there are
many areas in our lives where we expect confidentiality but privilege does not attach.
 see CB 613: confidential communications are not necessarily privileged (but privileged
communications are always confidential)
When does
privilege become
an issue?
Types of
Privilege
Example: Lawyers
 everything heard from a client is confidential
 easily breached accidentally
 solicitor-client privilege, however, is narrower than this confidentiality expectation
Issues that arise before the witness gets in the witness box
(1) competence
(2) compellability
Issues that arise before or after the witness gets in the witness box
(3) privilege
Class privilege
 a certain class of communications is considered to be presumptively inadmissible
(e.g., solicitor-client privilege; informer privilege; marital or spousal privilege)
Case-by-case privilege (1970s development  see CB 615)
 Wigmore test: (1) the communications must originate in a confidence that they
will not be disclosed; (2) this element of confidentiality must be essential to the
full and satisfactory maintenance of the relation between the parties; (3) the
relation must be one which in the opinion of the community ought to be
sedulously fostered; (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 litigation
Evidence of Children and Individuals whose Mental Competence is Challenged
Solicitor-client
privilege
In the history of the common law, solicitor-client privilege is the most jealously guarded
privilege
 Rationale: the way our system is structured, it’s hard to imagine it functionining
without a strong protection of this privilege
Originally, solicitor-client privilege was a rule of evidence (e.g., only relevant at trial where
the lawyer testifies)
Descôteaux v.
Mierzwinski
SCC 1982
Problem: police were seizing lawyers’ files on the grounds that the privilege could not be
asserted until trial (as a rule of evidence); gradually fixed by statute
Facts: prosecution of a legal aid recipient on the grounds that the recipient mis-claimed
their income in order to be eligible for legal aid
Decision:
 four factors: (1) privilege may be raised in any circumstance where such
communications are likely to be disclosed without the client’s consent; (2) unless
the law provides otherwise, the legitimate exercise of a right that would interfere
with privilege, the resulting conflict should be resolved in favour of protecting
privilege; (3) when the law gives someone authority that might interfere with
confidentiality, the decision and choice of exercise should not interfere with
privilege except to the extent absolutely necessary in order to achieve the ends
sought by the enabling legislation; (4) acts under (2) and (3) must be interpreted
restrictively
Law 309: The Law of Evidence
Cox and Rails
Film
Cunningham
Waiver
Communications
that Facilitate a
Criminal Purpose
G. Morgan (Foster, Spring 2013) | Page 58
Contemporary example: Basi-Virk case where the legal fees were not required to be paid
back; Auditor General is attempting to access the legal invoices; BCSC decision upholds
confidentiality (SCC says that bills are presumptively privilege but not necessarily)
Communications in furtherance of a criminal purpose
Two types:
(1) client seeks advice to do something criminal (not protected because you are a
co-conspirator)
(2) client doesn’t tell you enough information to know what is going on but gets
information from you that helps him or her (not protected because the client
didn’t take you into her confidence)
Two solutions:
(1) lawyer returns the shirt and keeps mum
(2) lawyer instructs another lawyer to return the shirt
How do we minimize the impact on the client? Likely (2)
CB 619: are lawyer’s bills subject to attorney-client privilege?
No real bright lines  communication itself is privileged (e.g., not the bloody shirt or the
documents)
Campbell (SCC 1999)
 reverse sting operation where police sold drugs to target
 unlike when police purchase drugs, there was no protection for police officers
sell drugs
 Δs (police officers) had relied on Justice lawyers who indicated that the strategy
was legal
 if you are going to invoke your lawyer’s advice, the other side gets to look at the
advice to determine whether the advice was validly invoked
What happens when a defendant discloses the privileged communications in the course of
critiquing their defence counsel?
 Francis Lee Bailey Jr. & Patty Hearst (Symbionese Liberation Army)  defence
counsel said “if you talk, I talk”
 University of Alberta professor who murdered his wife  defence counsel
refused to “rise” to the occasion
Foster: not an exception but rather never covered by the privilege
Leading case = Cox and Railton (UK 1884)
Illegal purposes:

 Australian government & legal counsel re: frustration of indigenous land claims
Exceptions to Solicitor-Client Privilege
Public Safety
Essentially, this exception requires clarity of imminent risk of serious bodily harm or death
[incl. psychological harm that infers with health or well-being] to an identifiable group
Three requirements:
(1) clear risk to an identifiable person or group of persons
(2) risk of serious bodily harm or death
(3) imminent danger
Smith v. Jones
Extent of disclosure:

Note: solicitor was not a party to the conversation, which was between the psychiatrist and
Law 309: The Law of Evidence
SCC 1999
G. Morgan (Foster, Spring 2013) | Page 59
the client (e.g., medical privilege)  however, the psychiatrist was acting as an agent for
the lawyer to obtain the information necessary for the lawyer to inform and advise the
client
Facts: client told the psychiatrist that the offence was a dry-run in series of crimes;
psychiatrist disclosed to lawyer assuming that it would be revealed; psychiatrist learns that
the lawyer is not disclosing; psychiatrist brings an action to determine that the
Decision: while the quality of imminence was not significant , disclose was appropriate
Dissent on extent of disclosure: conscriptive evidence should not be revealed in the
disclosure (on the grounds that the majority opinion did not limit the disclosure)  raising
a concern with privilege against self-incrimination
Innocence at
Stake
BCSC  psychiatrist was under a duty to disclose the information
BCCA  BCSC did not have jurisdiction to make that order and could only authorize the
breach of privilege (i.e. does not compel the breach)
SCC  does not appear to alter the BCCA decision on this point
McClure test but leading case is now Brown
Threshold test:
(1) the information from the solicitor-client communication is not available from any
other source
(2) the accused in unable to otherwise raise a reasonable doubt
Test
(1) demonstrate on an evidentiary basis to conclude that a communication exists
that could raise a reasonable doubt as to his or her guilt
(2) if stage #1 is met, the trial judge should examine the communication to determine
whether, in fact, it is likely to raise a reasonable doubt as to the guilt of the
accused
Amplification of the record = affidavit from the lawyer in the solicitor-client relationship
(Brown)
R v Brown
Foster: virtually impossible to use this eception
Facts:
SCC 2002
Decision: the issue was premature
What steps needed to be taken before breaching privilege?
1) were the girlfriend’s statements admissible as hearsay?  hold voire dire to
make a final determination on their admissibility
 willingness to relax the rules of evidence in other areas to all the (e.g.,
knock down hearsay before solicitor/client privilege)
 rules of evidence could be relaxed in favour of the accused if necessity
demanded it
2) could the defence have raised a reasonable doubt without the solicitor-client
information
 Crown case
 BUT one piece of the evidence was not circumstantial  jailhouse
informant
 problem: the committee that determines whether the jailhouse informant
could be used had not issued a decision
 SCC: this avenue needed to be exhausted first before breaching solicitor-
Law 309: The Law of Evidence
G. Morgan (Foster, Spring 2013) | Page 60
client privilege
n.b. awkward position for defence counsel who must argue that the Crown has made its
case beyond a reasonable doubt AND the only way to raise a reasonable doubt is to admit
the privileged information
Application
Issue of disclosure: in the unlikely event that a McClure application succeeds, who gets
the information?
 Crown is not entitled to the privileged communication
 Only the accused gets the information to make a determination as to whether to
introduce it
 If the defence does decide to introduce the evidence, it does become public
knowledge
Section 7 of the Charter protects use immunity and derivative use immunity
Litigation Privilege
Litigation
Privilege
Solicitor-client privilege: designed to protect the relationship by enabling a client to be
honest with the solicitor (to allow better counsel)
 accordingly, it is a permanent privilege that survives the solicitor-client relationship and
the death of the client
In contrast, the rationale of litigation privilege is different  tied to the nature of the
adversary system (e.g., when you are doing battle, you don’t want the adversary looking
over your shoulder)
AKA the work product privilege or the lawyer’s brief privilege
Accordingly, this privilege ends when the litigation is complete
Blank v. Canada
(Minister of
Justice)
SCC 2006
n.b. includes communications with third parties who are not agents of the lawyer or the
client
Facts: a very determined and unrepresented individual; Blank and his corporation had
been charged
Decision: the information was not, in fact, covered by solicitor-client privilege but rather
litigation privilege
What’s still unclear? when a subsequent proceeding is not related to the original
proceeding
 in this case, it was a totally new juridical process (e.g., a civil complaint about the
previous case)
Overlap between litigation privilege and disclosure  overriding disclosure obligations
may make information that
 30 years ago, an expert’s report was covered by litigation privilege until the
expert was put on the stand
 now, notice period requires closure in advance of the trial
Unclear whether publically available information copied into the file (e.g., cases, public
records) are covered by litigation privilege  likely covered if legal input into organizing
the work product; not likely covered if it’s “everything”
Law 309: The Law of Evidence
G. Morgan (Foster, Spring 2013) | Page 61
Application of Solicitor-Client and Litigation Privilege: Third Party Documents
Big, Bird &
Associates
Problem
Problem = arguable (i.e. can go both ways)
Litigation privilege does not apply because the information was not solicited in the
furtherance of litigation.
For solicitor-client privilege, Bert would need to argue that the surveying firm was an agent
of the solicitor. However, this case can be distinguished from the case where the
psychiatrist was the “conduit” (e.g., obtained information from the client for the solicitor)
Generally speaking, communications with third parties are not subject to solicitor-client
privilege unless the third party is an agent through which the client communicates with the
solicitor or vice versa.
Wheeler v. Le Marchant (UK 1881) found that the surveying firm was a third party not
subject to solicitor-client privilege  continually cited in Canada so likely an accurate
statement of the law
Dispute Settlement Privilege
Dispute
Settlement
Privilege
Purpose: we want to facilitate and encourage settlement
If parties engage in negotiations with the view to reaching a settlement, concessions
should not be used against you as an admission of liability if the case ends up being
litigated
Class privilege = privileges apply across the board to a particular type of communications
Case-by-case privilege = not within a class and therefore must argue on a case-by-case
basis for the communication to be treated as privileged
n.b. Justice Williamson was the trial judge in Heritage Duty Free Shop, which was upheld
by the BCCA
Informer Privilege
R v Leipert
Facts: see notes
SCC 1997
Exceptions to Stinchcombe disclosure:
 irrelevance (generally construed against the Crown so even marginally relevant
material will be produced)
 privilege
n.b. Crown commonly stays proceedings instead of revealing informer privilege (even
when the innocence at stake exception is found) to protect their relationships with
informers
Reasons:
 no balancing of interests in this type of privilege (except with innocence at stake
exception)  accordingly, the edited disclosure was misconceived (no balancing
interests once the informer privilege was established)
Three situations in which the innocence at stake exception would apply:
(1) strong evidence that the informant is a material witness to the crime
(2) strong evidence that the informant is an agent provocateur (e.g., participated in
the crime  typically part of an abuse of process argument)
(3) accused challenging the validity of the search under section 8 of the Charter 
Foster: very narrow, likely only in cases of planted evidence (where the informant
is the planter)
Question: how does
“innocence” at stake
play out given that
our criminal style is
predicated on
guilty/not guilty (e.g.,
cannot find
innocence)
Procedural
clarification: why
wasn’t the Crown
able to withdrawn the
tipster component of
the warrant?
Law 309: The Law of Evidence
Solicitor-General
of Canada v.
Royal
Commission of
Inquiry into
Confidentiality of
Health Records
in Ontario
G. Morgan (Foster, Spring 2013) | Page 62
Facts: Royal Commission was established to investigate the accusation that doctors were
providing confidential medical information to the RCMP; RCMP invoked informer privilege
to protect the doctors who provided the confidential medical information
Decision: majority upheld the privilege despite the fact that the purpose of the Royal
Commission was to identify the informers
n.b. innocence at stake exception does not apply in civil proceedings
SCC 1981
Public Interest Immunity & Crown Privilege
Brief comment
Former name: Crown privilege
Selection
Overview pg. 19
Historically, it was a strong privilege  once the government invokves Crown privilege,
the courts cannot look behind the veil; related to the fact that the Crown was immune from
suit (as the Crown was immune from suit,
 Leading case = plans of a submarine in WW2
n.b. not
examinable
Relaxation in the 1970s and 1980s lead to judges’ looking behind the veil when Crown
privilege was invoked and even Cabinet privilege to determine whether the privilege was
validly invoked
However, the relaxation has back-pedalled a bit post-9/11 federally with the AG having the
power to override a court order to take back privilege (see sections 38-39 in the Canada
Evidence Act)
Spousal Privilege
Introduction
Husbands and wives were not competent to testify in civil and criminal trials until the
1840s (civil) and rules for competency
Accordingly, the privilege of matrimonial communications is only a new phenomenon
(because spouses would not be on the stand to testify)
Canada Evidence Act section 4(3)
 applies to same-sex relationships
 time-limited: only applies to communications during the marriage (and cannot be
invoked after the end of the marriage)
 the privilege holder is the person who receives it
 no reference to confidential communications (and privilege is intended to protect
confidences)
 BCSC decision is that communications are protected regardless of
confidentiality
R v Couture
SCC 2007
Facts: after marriage, the relationship deteriorated and the wife was persuaded to go to
the police to implicate her husband in a murder 20 years earlier; she regreted the
information
Issue: could the Crown circumvent her lack of
R v St-Jean
Decision:
 no issue of matrimonial privilege because (1) wife was not compellable (and
therefore not on a witness stand  and privilege is something that is claimed on
the stand); (2) confession occurred when they were not married
Facts: accused charged with incest, which made his wife competent and compellable;
Crown asked her whether she discussed her testimony with the husband; trial judge
Recall distinction
between competence
and compellability
Law 309: The Law of Evidence
??? 1976
R v Zylstra
ONCA 1995
Intercepted
communications
G. Morgan (Foster, Spring 2013) | Page 63
objected that the question could not be asked
Decision:
 CA: in cases where the spouse is competent and compellable, the spouse does
not have matrimonial privilege
 Foster: question could be asked wife had the right to refuse to answer by
invokving the matriomonal privilege
Decision:
 while the wife was competent and compellable, she could invoke matrimonial
privilege on communications between her husband and herself
 wife could testify to what she saw but the privilege was appropriate when asked
about communications
 procedure: (1) privilege can be invoked in the presence of the jury; (2) jury should
be instructed that a) it’s a statutory privilege that all legally married witnesses are
entitled to assert; and b) it’s a privilege held by the witness and therefore it is not
the accused’s decision whether
What’s outstanding? whether the jury can be instructed to not make an adverse inverse by
the spouse invoking privilege
Facts: accused wrote a letter to his wife admitting a crime; accused gave it to a fellow
sailor
Decision:
 wife could invoke the privilege to not reveal the contents of the communication
but the Crown doesn’t need her testimony because it has
 generally the proposition has been accepted that intercepted
Wiretap
Communication
Expansion:
 inadvertant disclosure (disclosure by mistake) was admissible  however, case
law in Canada has been scaling back this breadth by reviewing it on a case-bycase basis to determine whether the privilege was lost
Criminal Code section 189(6)
 literal interpretation was meaningless because intercepted matrimonial
communication was historically found to not have the privilege attach
 Jean and Piesinger (SCC 1979) and Lloyd and Lloyd (SCC 1981) decided that
solicitor-client communication and matrimonial communication was inadmissible
even if it was intercepted during a wiretap
Case-by-Case Privilege
Slavutych v.
Baker
Facts: university tenure case; Prof. S was asked for an opinion on a colleague up for
tenure; Prof. S asked if the opinion would be confidential; Prof. S provided a rather
strongly worded opinion; after the tenure, the President dismissed Prof. S on the basis of
the opinion he offered
Decision:
Reasons:
 four Wigmore criteria (CB 694-5) are used to examine whether, on a case-bycase basis, whether particular communications should be privileged  strange
because Wigmore developed the criteria to generalize what the class privileges
held in common (as a way to determine whether a new class may be permissible
in the future)
 document provided to the tenure committee was marked Confidential on multiple
places
 Argyll v. Argyll (UKCA 1967)  injunction to not publish love letters
Law 309: The Law of Evidence
G. Morgan (Foster, Spring 2013) | Page 64

R v Gruenke
SCC 1991
in this case, an equitable injunction would attach to restrain the confidential
document from
Facts: G confessed the murder to her pastor and counsellor at her church
Issue: attempt to create a class privilege for priest-penitent communications (statutorily
created exemption in Newfoundland and Quebec)
Decision:
 evidence of the statutory privileges was evidence that there wasn’t a class
privilege at common law
 however, considered whether privilege existed on a case-by-case basis
 normally, the first three Wigmore criteria are satisfied but founder on the 4th
criteria
 public interest’s in the truth > individual’s interest in protecting confidentiality
 solicitor-client privilege is absolutely essential to the administration of justice but
that rationale does not extend to religious communications
 but how essential is matrimonial privilege to the administration of justice?
 in this case, the majority was not satisfied that the first criteria was satisfied (e.g.,
the pastor and counsellor were unclear whether the communication was intended
to be confidential, the facts actually suggested that the
M.(A.) v. Ryan
SCC 1997
n.b. could probably bank on the SCC not creating a new class of privilege
Classic case in which a class privilege could have been made
Facts: A.M. was sexually assaulted by Dr. Ryan; A.M. started seeing a therapist; Ryan
was convicted of sexual assault; A.M. sued Ryan for civil damages; question was whether
her therapist’s records could be disclosed
Decision: partial disclosure ordered
Reasons:
 first criteria: judge below found that A.M. and the therapist were aware that there
was no class privilege, there was no communication in  however, SCC
disagreed  confidence can still attached whether or not a class privilege exists
 disclosure subject to four exceptions: (1) inspection only by counsel (not the
accused); (2) counsel must swear to keep the information confidential; (3)
counsel could only use information in the course of litigation; and (4) only one
copy of the notes could be made
 only disclosed conversations between A.M. and the therapist (but not the
therapist’s notes after the session)
Problems with the case-by-case approach:
 hard to live with the uncertainty (e.g., never know if the information will be treated
as privileged)
 inefficient to go to the SCC each time to determine the privilege
 always weighing competing values  focuses more and more on the facts of the
individual case (where the purpose of privilege was to draw a line based on
policy grounds with some exceptions to offset the bright line)
 note that the US and UK have no exceptions to solicitor-client privilege, and a
class privilege for patient-therapist privilege (see CB 706)
R v National Post Facts: document was given to a reporter over the Chrétien/golf course fiasco; the person
who created the document alleged that it was a forgery; given this allegation, police
SCC 2010
wanted to reporter to hand over the envelope for investigation; report declined
Law 309: The Law of Evidence
G. Morgan (Foster, Spring 2013) | Page 65
Decision:
 the fact that it was material evidence (e.g. physical evidence) probably weighed
against privilege (e.g., not requesting the identity of the source but rather the
information from the soruce)
 emphasis on the 4th Wigmore criteria
Case-by-Case Privilege
Brief Comment
n.b. not
examinable
Three different concepts
1) disclosure
2) production
3) admissibility
Disclosure = (1) both parties in civil cases; and (2) Crown in criminal cases
What about evidence that the Crown knows is in existence but does not have in their
possession? No requirement for the Crown to disclose something that it does not own.
Third parties do not have privilege but they often claim privacy to decline producing it.
Production = accused asks the court to order a 3rd party to order production of evidence in
their possession (e.g., records of rape crisis centres, etc.)
 Criminal Code regime for the production of 3rd party evidence in sexual assault
cases
 common law regime for all other evidence
Admissibility  disclosure or production does not mean that the evidence is admissible
Implied/Deemed Undertaking of Confidentiality in Discovery
Introduction
Juman v.
Doucette
SCC 2008
Examination for discovery is about parties (occasionally includes
 essentially compelled testimony because otherwise can be held in contempt
 because of the compelled nature of testimony, there is an implied or deemed
undertaking that what is said in the discovery room remains in the discovery room
Facts: young child seriously injured while at daycare; civil suit against day care and Juman
(child care worker); Juman argued that the injury was the product of prior injuries;
Vancouver Police were investigating the daycare for some time (and had arrested her and
questioned her in the absence of counsel / had wiretap on her telephone) but no criminal
charges had been laid (and active investigation continued); when examined for discovery,
she invoked all her protections under the Canada Evidence Act and the Charter; civil suit
settled so no discovery evidence was entered at trial; BC AG and Vancouver Police went
to court to get an order to have the discovery testimony disclosed to police
Issue: AG was arguing for an exception to the deemed undertaking that would allow a
party to the litigation to bona fide disclose information related to criminal activity
Rationale for the deemed undertaking: if you are going to be compelled, you are entitled to
protection vis-à-vis the implied/deemed undertaking (e.g., only used for the purposes of
this litigation)
Rule = “both documentary and oral information obtained on discovery, including
information thought by one of the parties to disclose some sort of criminal conduct, is
subject to the implied undertaking. It is not to be used by the other parties except for the
purpose of that litigation, unless and until the scope of the undertaking is varied by a court
order or other judicial order or a situation of immediate and serious danger emerges” (¶4)
Standing issue  previously thought that it could only be a party to the litigation to have
the implied undertaking varied; however, SCC recognized that there might be
circumstances where a third party would apply to have the undertaking varied
Law 309: The Law of Evidence
G. Morgan (Foster, Spring 2013) | Page 66
Essentially, the Court refuses to allow the AG/VPD to circumvent the normal investigative
procedures (e.g., obtaining a search warrant, etc.) by obtaining a blanket exemption to the
implied/deemed undertaking
Open court argument: AG alleged that the implied undertaking undermines the open court
principle; SCC dispatches this argument on the grounds that discovery is not open
n.b. self-incrimination undertones are irrelevant (e.g., the implied undertaking exists
irrespective of whether self-incrimination occurs)
To override, the onus on is on the party seeking to break the undertaking to establish that
the undertaking is “trumped by a compelling public interest” (¶30)
When will the undertaking be varied? public safety; impeachment (Henry, Nedelcu)
 n.b. ¶57: discovery may be used for impeachment subject to Charter section 13
challenges (as was eventually determined in Nedelcu at the SCC)
Bottom line: SCC unhappy with parties who were bound by the undertaking to disclose
bona fide as an end-run around the accused’s protections with the police (e.g., against
self-incrimination, etc.)
XI. Admissions and Judicial Notice
Formal Admissions
Criminal Proceedings
Defence
provisions
Crown
admissions
Criminal Code section 655
No formal provision
Civil Proceedings
Types of
Admissions
CB 752
BC Supreme
Court Civil Rules
Formal admissions = (1) statement in the pleadings or by failure to deliver pleadings; (2)
by an agreed statement of facts filed at trial; (3) by an oral statement made by counsel at
trial (or even counsel’s silence in the face of statements made to the trial judge by the
opposing counsel with the intention that the statements be relied on by the judge; (4) by a
letter written by a party’s solicitor prior to trial; or (5) by a reply or failure to reply to a
request to admit facts
Section 7
(5) no entitlement to withdraw an admission without consent of the court (c.f. CB
Judicial Notice
Introduction
CB 753
Three
approaches
“In conducting a process of judicial reasoning, as of other reason, not a step can be taken
without assuming something which has not been proved; and the capacity to do this, with
competent judgement and efficiency, is imputed to judges and juries as part of their
necessary mental outfit” (Thayer)
Binnie: judicial notice is not the exception but the rule (the tip of the iceberg)
Thayer: judicial notice was not used enough; far too many trials were decided on
technicalities that could have been resolved by “common sense” and “what everybody
knows”; judicial notice should be more transparently used; judicial notice was conditional
(e.g., could be countered by evidence by the party against whom it operated)  goal =
trial efficiency
Morgan: “gold standard”; judicial notice should be restricted (test from N.A.P.E. on CB 754
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is a pretty classic Morgan statement of the law); facts either notorious or indisputable, or
could be resolved by a source that itself was indisputable; concern = abuse by the
judiciary
 Problem: neither Thayer nor Morgan distinguish between the types of facts that get
judicial notice
Davis’ Approach
to Judicial Notice
Davis: distinguish between adjudicative and legislative facts
Three factors:
(1) whether the fact in issue is close to the centre of the controversy between the
parties, or merely background or near the periphery of the dispute
(2) whether the facts are adjudicative or legislature
(3) the degree of certainty or doubt with respect to the particular fact
Legislative vs. adjudicative facts
“The exceedingly practical difference between legislative and adjudicative facts is that,
apart from facts properly noticed, the tribunal’s findings of adjudicative facts must be
supported by evidence, but findings or assumptions of legislative facts need not,
frequently are not, and sometimes cannot be supported by evidence” (Davis, “Judicial
Notice” 55 Columbia Law Review 945.)
Adjudicative fact = fact that needs to be settled to resolve the dispute between the parties
by the trier of fact
Potts: whether Commercial Dr in Ottawa was within the Capital Region? CA found that a
judge regularly sitting in Ottawa would have that information (essential to jurisdiction)
Leading case: court could judicially notice that a camel was not a wild animal because it
was domesticated
Legislative fact = whenever a judge is called upon to interpret the common law, a statute
or the Constitution  e.g., facts relevant to judicial law making
e.g., can you make a section 1 argument in the absence of facts? What about section
24(2)? What is “demonstrably justified in a free and democratic society”?
Zundal  outlier because it fits the gold standard in Morgan but ultimately because the
Crown could have made the case entirely through judicial notice about the Holocaust (as
the actus reus was spreading fall news)
 however, the false news provision was found unconstitutional because the
provision had no valid public purpose (e.g., original provision had origins
Can we take judicial notice of all historical facts? Probably not  history is very much a
discipline of dispute (and always emerging clarity)
Post-Spencer, non-adjudicative facts are split into two categories: (1) legislative facts, and
(2) social framework (see para 57)
Social framework facts = facts that relate to the fact-finding process; social sicence
research used to construct a background context
Examples: battered spouse system in Lavallee
 first established by L’Heureux-Dubé in an article that focused on how
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 concern = a lot of
Spence
SCC 2005
CB 788
n.b. legitimate judicial notice does not engage the hearsay rule
Facts: see notes
Decision: possibly true that people of one minority (same minority of the victim) could not
adjudicate fairly because the accused was a different minority BUT this possibility is not
one that can be accepted through judicial notice (e.g., require expert witnesses than can
be cross-examined to reach this conclusion)
Morgan = gold standard = starting point for any judicial notice*
Foster’s qualification: does the Morgan approach only work for adjudicative facts and
social framework facts, but not legislative facts?
Judicial notice of
law
R v Bartleman
1984
¶68 warning to counsel
Judges are bound to take judicial notice of domestic law (common law, statute law) 
some provinces also allow judicial notice of other provincial jurisdiction and
Facts: charged with hunting in violation of the Wildlife Act; defence was that he had a
treaty right to hunt (and therefore the Wildlife Act provision did not apply) per Indian Act s.
88;
Douglas Treaties are essentially conveyances (and why they are only signed by the First
Nations communities) that describe the land being ceded with the condition “our village
sites and enclosed fields … It is understood, however, that the land itself with these small
exceptions, become the entire property of the white people for ever; it is also understand
that we are at liberty to hunt over the unoccupied lands, and to on our fisheries as
formerly”
Issues:
 was the issue within the scope of the treaty?: Crown argued that the location was
not within the ceded territory of North Saanich treaty (e.g., the hunting rights only
extended to ceded land)
 was the hunting on unoccupied land?: hunting on semi-cleared brush land owned
by a private landowner (although in hunting season, permission was not
necessary unless “No trespassing” or “No hunting” AND Bartleman did not know
that the
Lambert J.A. notes his research:
 formal admissions on a number of historical facts
 Provincial Archives copy of the treaties + letters between the HBC and the
colonial records (likely published)
 scholarly and academic materials
 not all material was in evidence  “Much of this material was put in evidence.
But some of it was not. To that extent, and to that extent only, I have gone
outside the evidence led at trial. In doing so, I have regarded myself as taking
judicial notice of indisputable, relevant, historical facts by reference to a
readily obtainable and authoritative source, in accordance with the ordinary
principles of judicial notice.”
Problem: the treaties were signed on blank pieces of paper in advance of the text arriving
from out east
 likely that the X’s were not even made by the signatories (e.g., likely just talked orally
while the secretary did the rest)
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 further problem: significant language barrier (negotiation likely took place through
translation using Chinook jargon as a crutch)
Three potential interpretations:
(1) hunting and fishing rights were extinguished outside the ceded land
(2) hunting and fishing rights outside the ceded land were left unaddressed
(3) hunting and fishing rights were confirmed for the ceded territory and for all the
traditional territory on which the hunting and fishing rights occured
Why was the (3) interpretation selected?
 ethnographic evidence suggested that none of the groups hunted solely on the
land ceded by the territory (why? none of the packages of ceded land were big
enough to support the population)
 interpretation was consistent with the oral history of the elders
 fishing rights had to apply outside the ceded territory because not all ceded
territory included water space
Issue of occupation: because during hunting season anyone could have hunted without
permission, it was appropriate to consider the land as unoccupied
The other two judges agreed in result but with a caveat: the evidence adduced by the
parties was sufficient to reach the same conclusion (e.g., without the historical material
that was considered under judicial notice)
 legitimate concern that parties should be aware if the judge was going to do
external research in order to address any material that was being put in front of
the judge
M H Ogilvie’s criticism of Lambert’s approach:
(1) similar critique to the legitimate concern above
(2) critiqued his suggestion that the found historical material and academic sources
met the gold standard in Morgan
Ogilvie cited an eminent Oxford scholar (P B Carter) who then responded with his own
critique of her interpretation of judicial notice.
Carter: what was the purpose of Lambert’s research? Lambert was casting around for
contextual help to assist his interpretation of the treaty (the law.) Prof Carter suggested
that Lambert was dealing with legislative facts (which does not necessarily require the
Morgan standard, although Spence tells us that we should start there)
n.b. hard to apply the Morgan standard to historical facts because only very
straightforward events will meet the standard  history is interpretation
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Witnesses: Competency, Compellability and Examination
Oaths and Affirmations
R. v. Bannerman (MBCA 1966)
Case Details
Issue: admissibility of child’s evidence concerning sexual assault  did brother understand the
consequences of the oath?
Facts: accused charged with the sexual assault of brother (13 years) and sister (12) years). Brother told
the court that he did not know when asked what would happen if he didn’t tell the truth
Decision: witness admissible
Reasons: (1) appellate court should avoid interfering with a trial judge’s discretion unless it is
“manifestly absurd” because the trial judge had the advantage of seeing the witness in person; (2) “I
don’t know” is probably the most accurate answer to the question as spiritual (supernatural)
consequences are known only to the divine; (3) not necessary to require the “sureness of Divine
punishment”; (4) consequences = understanding moral obligation; “(5) “The object of the law in
requiring an oath is to get at the truth relative to the matters in dispute by getting a hold on the
conscience of the witness” (CB 47)
CEA s. 16(1) and (2)
Key Concepts

Challenging Mental Capacity
R. v. Khan (SCC 1990)
Case Details
Issue: admissibility of child’s unsworn evidence and statements by child to adult concerning sexual
assault
Facts: T (3 ½ years old) general exam at Dr Khan’s office; T in private office w/Dr w/o mom for 5-7 min;
T alone for 15 min for mom’s exam; mom observed T picking at wet spot in sleeve; 15 min late, T told
mom that Dr told her to open mouth, put birdie in it and peed; spot on sleeve was mixture of semen and
saliva
Decision: (1) trial = T not competent to give unsworn evidence + evidence of mom not admissible (not
3) SCC = new trial; evidence should
have been received as unsworn
Reasons: (1) the Bannerman
and understanding of the duty to tell the truth) determine whether the unsworn evidence can be
admitted; (2) child’s age is not a distinction in the CEA
Post-Khan Amendments: (1) person challenging the mental capacity of witness 14 years or old has
burden of satisfying the court as to the capacity
CEA s. 16(1) and (2)
Key Concepts

Accused’s Failure to Testify
McConnell and Beer v. The Queen (SCC 1968)
CEA s. 4(6)
Case Details
Key Concepts
Issue: when does an explanation of the law become a comment that violates s. 4(6)?
 Binder (ONCA 1948): s.
Facts: Beer in car behind dry cleaner w/ headlights off and engine running; McConnell standing under
4(6) only applies to jury
open window of dry cleaner’s; search found iron bar, screw driver and table knife on or under front seat;
trials
Beer acknowledged ownership and explained use (screw driver for engine and iron bar for hub caps);
evidence from Mrs Beer as to these usages and knife from summer picnic; McConnell said to police
that he was urinating
Decision: (1) trial = instruction to jury that they did not have to accept McConnell’s statement (not
sworn); clarified on objection that there is no onus on the defendant to prove innocence by testifying;
(2) CA = instruction was a legal explanation, no violation of s. 4(6) if no possibility of prejudice; (3) SCC
=
Reasons: (1) distinguish this case where the comment is an explanation (articulation of the right not to
testify) from cases (Bigaouette, Gallagher) where the comment is on the failure to testify; (2) failure to
testify, without comment, already raises the spectre of the issue to the jury therefore judge should be
free to explain
Dissent: (1) s. 4(6) cannot be protection of accused as that is amply covered by “innocent until proven
guilty”; (2) s. 4(6) prohibits comment and the trial judge did comment
Policy Considerations: (1) purpose of s. 4(6) not to preclude explanations of the law; (2) purpose of s.
4(6) is to prevent spinning the failure to testify as a cloak for guilt; (3) evidence of the use of the iron bar
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was elicited in cross-examination of Crown witness (admissibility highly questionable)
R. v. Noble (SCC 1997)
Case Details
Issue: what weight can be placed on the accused’s failure to testify?
Facts: accused and other men were found by apartment manager in parkade at 1 am with pot and a
screwdriver, which appeared to be used to “jimmy into a car”; manager given expired license, which he
turned over to police, which looked like the man before him; accused charged with B&E and
possession of an item suitable for B&E; manager could not identify accused
Decision: (1) trial = conviction based on expired license and silence; (2) CA = new trial; (3) SCC = new
trial
Reasons: (1) weighting silence is contrary to right to silence (distaste for compelling a person to selfincriminate); (2) weighting silence shifts burden of proof onto accused when s. 11(d) enshrines the
presumption of innocence (burden on the Crown); (2) determining weight does not consider trier of fact
(jury vs. judge); (3) however, two important differences between jury and judge: a) judge cannot explain
law in a jury trial; and b)
Policy Considerations:
Key Concepts

The Burden and Quantum of Proof
Burden and Quantum of Proof in Criminal Proceedings
R. v. Lifchus (SCC 1997)
Proof BRD
Case Details
Key Concepts
Issue:

Facts: L, a stockbroker is convicted of fraud. Trial judge described proof BRD as ordinary, every day
words that the jury would understand. L appealed conviction on the grounds that BRD was not
sufficiently described to jury.
Decision: (1) trial = conviction; (2) CA = new trial; (3) SCC = new trial
Reasons: (1) fair trial = trier of fact has clear understanding of fundamental concepts incl. BoP; (2)
while common words, BoP has a specific legal meaning that may need to be distinguished from the
ordinary meaning; (3) do not describe as ordinary (not proof that one would use in ordiarny life)
Policy Considerations: (1) in the wake of “tragic errors” (Milgaard, Marshall, Morin), essential to be clear
on onus; (2)
Hearsay: The Rule, the Exceptions and the Principled Approach
Defining Hearsay
Subramaniam v. Public Prosecutor (JCPC 1956)
Case Details
Facts: accused convicted of possessing 20 rounds of ammunition in contravention of the wartime
Emergency Regulations; defence counsel was not permitted to examine the accused on the threats
that he alleged were made by the rebels to oblige him to carry and load the ammunition (to support the
alleged defence of duress) on the grounds that it was hearsay (rebels were not in court to be
examined)
Decision: not hearsay
Reasons: (1) a statement is hearsay and therefore admissible when “a statement made to a witness by
a person who is not himself called as a witness” + “the object of the evidence is to establish the truth of
what is contained in the statement”; (2) in this case and other similar cases, it is not hearsay when the
statement “is proposed to establish by the evidence, not the truth of the statement, but the fact that it
was made”
Policy Considerations:
R. v. Wildman (ONCA 1981)
Case Details
Facts: accused convicted of 1st degree murder of his step-daughter, which occurred on Feb. 15 with a
hatchet; evidence that the accused told his divorce lawyer on Feb. 16 that Mrs. Wildman accused him
of the murder using an axe; evidence that on Feb 20 accused made statement that an axe had been
put in step-daughter’s head; defence counsel sought to introduce evidence from the neighbour that the
accused’s wife (mother of step-daughter) called Feb. 16 to accuse the neighbour, the neighbour’s
husband and the accused of killing the step-daughter with a hatchet, and that the neighbour related this
Was it hearsay?
Key Concepts

Was it hearsay?
Key Concepts

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conversation to the accused; this evidence (and related evidence from the neighbour’s husband) was
excluded as hearsay
Decision: not hearsay
Reasons: (1) not tendered to establish the truth of the statement but rather the accused’s state of mind
(i.e. explaining the Feb. 20 statement); (2) neighbour could testify to what she told the accused w/o it
being hearsay; (3)
n.b. ONCA applied curative provision in Criminal Code and did not order a new trial; SCC agreed with
ONCA on the hearsay but did not apply the curative provision and therefore ordered a new trial
Creaghe v. Iowa Home Mutual Casualty Company (US 10th Circ. 1963)
Case Details
Facts: Collision between C’s car and O’s truck. C seeks to collect judgement from insurer b/c C alleges
insurer insured O’s truck. Insurer alleges O cancelled policy before collision. O not called as a witness.
Regs. req’d that policy could only be cancelled w/ 10 days’ notice to regulator (commercial vehicle),
refund of premium and repossession of policy. At time of accident, all three req’s were met. Trial judge
also admitted evidence from agent re: O’s statements of cancellation.
Decision: not hearsay
Reasons: (1) testimony did not rely on the competency of O but rather whether the statements were
made to the agent; agent testified to the statements therefore his competency is both at stake and
examinable as a witness
Was it hearsay?
Key Concepts

Implied Assertions and Hearsay by Conduct
Wright v. Tatham (UK Exch. Ct. 1837)
Case Details
Facts: will left land to W; in the absence of a will, land would be inherited by T; T alleged testator did
not have capacity to make will; W sought to introduce letters written by persons (now deceased) to the
testator to establish his ability to write letters and manage business
Judicial History: 1st trial found for W with letters admitted but T successfully had KB set aside the
verdict; 2nd trial excluded letters and found for T; W brought new bill of exception arguing that the letters
were improperly excluded
Decision: hearsay
Reasons: (1) letters inadmissible because they were tendered as evidence of the truth of their
statements (i.e. the course of their conduct suggests that the testator was competent), b/c the writers
were not examinable, they are hearsay statements; (2) Tindal CJ distinguished one letter on the
grounds that there was evidence how the testator responded to the letter and that was the evidence of
his state of mind
R. v. Wysochan (SKCA 1930)
Case Details
Facts: accused convicted of murder; question of whether the victim’s statements to a 3rd party after she
was shot were admissible; evidence established that the only persons present were the accused, the
victim and the victim’s husband; victim asked 3rd party where her husband was and later asked
husband for help; Crown argued that it was improbably she would have asked for help from husband if
she had been murdered by him
Decision: not hearsay
Reasons: (1) Gilbert distinguishes statements proffered for the truth of a fact and statements proffered
as evidence of statement of mind (circumstantial); (2) in this case, the statements fall in the latter
category and are therefore admissible
Policy Considerations:
R. v. MacKinnon (ONCA 1989)
Case Details
Facts: accused convicted of 1st degree murder; evidence incl. discussion with possible accomplice,
possession of victim’s property after the victim’s disappearance, last person seen with the victim, etc.;
Crown introduced evidence that the accused’s wife was with the police when the victim’s body was
found 2 months after disappearance; evidence of wife’s presence with policy was contested
Decision: not hearsay
Implied assertion
Key Concepts

Was it hearsay?
Key Concepts

Hearsay by conduct?
Key Concepts

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Reasons: (1) hearsay would have been the police reporting statements made by the wife (as she was
not a compellable witness); (2) the fact of her presence was not a statement of hearsay or “hearsay by
conduct”; (3) hearsay by conduct = description of actions or behaviour (i.e. shrugs, headshakes, etc.)
but not factual presence (i.e. not an expression)
Policy Considerations:
Limits on supporting credibility
R. v. Kyselka (SCC 1962)
Case Details
Facts: accused were charged with the sexual assault of a 16 y/o girl described as “mentally retarded”;
accused claimed that she consented but she testified that she did not; Crown introduced evidence from
a psychiatrist that the girl lacked the imagination to fabricate the story given her mental capacity
Decision: evidence of the psychiatrist was not admissible
Reasons: (1) distinguished case from Fisher where the Crown introduced expert evidence to establish
that the accused had the capacity to form specific intent because in this case the only purpose of the
evidence was to influence the weight attached to the girl’s testimony; (2) while Gunewardene allows for
the opposite party to impeach the credibility of any witness, there is no authority for the type of oathhelping offered in this case by the psychiatrist’s testimony
Policy Considerations: (1) avoid confusion for juries by distracting from the real issues and potentially
shielding the truth
R. v. Marquard (SCC 1993)
Case Details
Facts: accused lived with 3 ½ y/o granddaughter; granddaughter suffered a severe facial burn; accused
and husband found granddaughter in living room with a butane cigarette lighter and a cigarette;
accused charged with assault; defence called Dr to testify that the granddaughter told staff she burned
herself with a lighter; Crown elicited opinion from Dr that the initial story was a lie
Decision: new trial
Reasons (McLachlin J, majority): (1) Béland: evidence for the sole purpose of bolstering credibility is
inadmissible  credibility is within the competence of lay people, expert opinion may be based on facts
not before the trier of fact; (2) however, features of a witness’s testimony may go beyond a lay person’s
expertise and expert evidence may be beneficial  accordingly, an expert may not comment on an
individual’s credibility but instead human conduct and psychological factors that may be helpful in
assessing credibility; (3) cite with approval Mewett’s conditions: a) expertise in particular area of human
conduct, b) evidence goes beyond a lay person’s understanding, and c) careful instruction on the
application of the evidence; (4) in this case, the Dr’s comments went beyond the general to the specific
and the jury was not properly instructed, therefore warranting (in conjunction with other factors on
appeal) a new trial
Reasons (L’Heureux-Dubé J, dissenting): (1) concur with majority on adopting Mewett’s conditions; (2)
would not find the Dr’s comments on the specific prejudicial in the context that they were elicited 
defence counsel called Dr to undermine the granddaughter’s credibility (she no longer remembered the
hospital statement) so Crown questions were to rehabilitate the granddaughter’s credibility; (3) Dr’s
opinion was “vitally important background” in which to contextualize the prior inconsistent statement; (4)
while there was an error in the judge’s charge, the charge as a whole left the jury with the knowledge
that it determined the granddaughter’s credibility
Policy Considerations: (1) disagreement in majority and dissenting reasons on how to characterize the
Dr’s statements (expressing an opinion on the granddaughter’s credibility in the majority view or
recounting the behaviour that alerted her to concerns about the child’s welfare)
R. v. Clarke (ONCA 1998)
Case Details
Facts: accused (60 y/o widower) charged with forcible seizure, assault with a weapon and possession
of a weapon for the purpose of committing forcible seizure against the complainant (ex-girlfriend); prior
to the incident, the complainant had written a letter to the accused requesting that he not contact her;
incident occurred in the complainant’s van; trial judge permitted defence counsel to call witnesses from
the small Caribbean community to attest to the accused and the complainant’s reputation for veracity
and whether that reputation would leave him or her to believe him or her on oath
Key Concepts

Key Concepts

Key Concepts

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Decision:
Reasons: (1) Béland makes it clear that neither party can advance oath-helping witnesses if the
credibility of the witness has not been called into question by the other party; (2) while the defence was
entitled to lead evidence of the accused’s reputation in the community, it was not permissible to ask
whether the witness would believe the accused under oath; (3) if reputational evidence as to a
witness’s credibility is introduced, two factors should be part of the jury charge: a) behaviour in a
community is not the same as testifying under oath, and b) character witnesses do not hear all the
evidence as the jury and do not have the same responsibility to divine the truth
Policy Considerations: (1) important development in the common law from the pre-Norman tradition of
“oath helpers”
Impeaching credibility & prior consistent statements
R. v. D. (D.) (SCC 2000)
Case Details
Facts: complainant (10 y/o) testified that the accused sexually assaulted her when she was 5-6 y/o;
defence counsel on cross-examination suggested the complaint was made up; Crown called a child
psychologist to give evidence that a delay in reporting did not support an inference of fabrication
Decision: evidence was inadmissible
Reasons (Major J. for the majority): (1) while historically there was a presumption of hue and cry /
recent complaint [presumption against the complainant if the complaint was not made in a reasonable
time], Criminal Code s. 275 overruled the authority of Kribs (SCC 1960) and Timms (SCC 1981); (2)
preferable for the trial judge to instruct the jury that there is no rule as to how survivors should respond
to sexual assault in terms of reporting; (3) no benefit to introducing this principle through expert
evidence; (4) in fact, expert evidence was really just an opinion on the correctness of the law (Criminal
Code s. 275), which did not meet the Mohan requirement for necessity
Reasons (McLachlin CJ. for the dissent): (1) evidence met the Mohan requirement for necessity
Policy Considerations: (1) 20th century Canada ≠ medieval England
Key Concepts

Prior convictions and credibility
R. v. Corbett (SCC 1988)
Case Details
Facts: accused charged with first-degree murder of a drug dealing associate (cocaine); accused
unsuccessfully applied to have his prior criminal record not admitted per CEA s. 12; defence therefore
questioned him on his prior convictions: armed robbery, receiving stolen property, breaking, entering
and theft, escaping custody, auto theft and non-capital murder
Charter s. 11(d) issue: whether the risk that the accused will be prejudiced by his or her prior
convictions entered into testimony (i.e. whether the jury will use this information for an improper
purpose) and whether that risk exceeds the government’s purpose in enacting CEA s. 12
Decision: record admissible
Reasons: (1) clear that the case “turned on credibility” between the Crown witnesses and the accused;
(2) s. 12 = legislative determination that prior convictions are relevant to determining credibility; other
considerations include demeanor, appearance, tone of voice, and general manner; (3) serious
imbalance would have arisen in this case if the accused’s prior convictions were not entered as
defence counsel vigorously cross-examined Crown witnesses on their criminal records; (4) accused’s
criminal record is relevant to credibility assessment of his or her testimony; (5) risk of improper use by
the jury risks undermining their role, which does not require legal expertise but instead common sense;
(6) more grave risk is for jury’s to make decisions in a vacuum of knowledge; (7) illogical to undermine
the credibility of juries given the right to a jury trial enshrined in Charter s. 11(f); (8) acceptable balance:
record permissible, subject to the discretion of the trial judge, and careful jury instruction; (9) limited
application: only conviction (not conduct leading to the conviction), cannot ask accused whether he or
she testified to imply the jury did not believe him or her, cannot ask accused about conduct with
discreditable persons or organizations,
Policy Considerations: (1) “Rules which put blinders over the eyes of the trier of fact should be avoided
except as a last resort” (CB 364)  preferable to provide all information with careful instructions on the
extent of its probative value; (2) maintain faith in juries
Character, “Similar Facts,” and Related Issues
CEA s. 12
Key Concepts

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Character evidence
R. v. Robertson (ONCA 1975)
Case Details
Facts: accused (16 y/o) charged with murder of 9 y/o girl; defence counsel sought to introduce expert
evidence that the Δ did not have the “aggressive or violent tendencies” that should be characteristic of
the type of person who would commit this type of crime; trial judge denied expert evidence
Decision: expert evidence was inadmissible but appeal granted on other grounds
Reasons: (1) Lupien (SCC 1970) allowed expert evidence that the accused would react violently
against homosexual behaviour in relation to a charge of gross indecency [for engaging in homosexual
sex]; (2) similarly, expert evidence may be adduced if “there is evidence tending to show that, by
reason of the nature of the offence, or its distinctive features, its perpetrator was a person who […] was
a member of ‘a specialized and extraordinary class,’ and whose psychological characteristics fall within
the expertise of the psychiatrist” (CB 417); (3) Crown counsel would be permitted to call expert
evidence to challenge defence counsel’s expert opinion; (4) psychiatric evidence of disposition is
admissible on behalf of the defence if a) relevant to an issue in the case, b) disposition = characteristic
feature of an “abnormal group falling within the range of study of the psychiatrist”, and c) jury receives
“appreciable assistance” with the matter, which is outside the knowledge of lay persons [i.e. expert
evidence admissibility]; (5), however, a mere disposition to violence is to common to constitute this
standard; (6) further, the evidence does not support that the killing—which entailed “great brutality”—
did not narrow the perpetrator to “recognizable personality characteristics or traits”
R. v. Mohan (SCC 1994)
Case Details
Facts: Δ (paediatrician) convicted of the sexual assault of 4 patients (13 – 16 y/o) during medical
examinations; complainants’ evidence admitted as similar fact evidence with respect to each other;
defence counsel applied to introduce expert evidence that the perpetrator of these crimes would be part
of a “limited and unusual group of individuals” and the Δ did not fall within that group; trial judge denied
application and Δ was convicted; ONCA allowed appeal.
Decision: expert evidence was inadmissible
Reasons: (1) general rule for character evidence introduced by the Δ = limited to “evidence of the
accused’s reputation in the community with respect to the relevant trait or traits” (CB 421); (2) when the
accused testifies, the accused can rely on specific acts: Canadian Dredge & Dock Co.; (3) expert
evidence that the accused lacks to the mental disposition to commit the crime does not fit the general
rule or the standard exception; (4) to admit expert evidence in this manner, the behavioural
characteristics must be “distinctive”; (5) admissibility of evidence is a legal decision and therefore
considered in respect to relevance (not psychiatric) standards; (6) to admit expert evidence, the trial
judge must be satisfied that “as a matter of law, either the perpetrator of the crime or the accused has
distinctive behavioural characteristics such that a comparison of one with the other will be of material
assistance in determining innocence or guilt” (CB 421); (7) trial judge’s decision is not made in a
vacuum but in consideration of the expert’s opinion (and the degree to which this opinion is in common
use); (8) trial judge must also be satisfied that the opinion is within the expertise of the witness; (9) in
this case, there was insufficient evidence that a physician committing sexual assaults against patients
fell within a distinctive class of individuals with identifiable characteristics; (10) further, the expert
opinion lacked the indicia of reliability that would make it helpful to the trier of fact
R. v. Morin (SCC 1988)
Case Details
Facts: accused charged with sexual assault and murder of 9 y/o girl; during trial, M had two defences:
1) he didn’t do it, and 2) if he did do it, he was NCRMD; defence’s psychiatrist testified that M was
schizophrenic; during cross-examination, psychiatrist stated that aspects of the crime reflected the
disorganized and disturbed thinking consistent with schizophrenia
Decision: expert evidence on characteristics of the crime was inadmissible to establish that the
accused was the killer
Reasons: (1) same principles used in similar fact evidence apply when the Crown seeks to introduce
psychiatric evidence related to the accused’s character; (2) principles governing admissibility similar
fact evidence = principles governing this type of expert evidence b/c propensity to commit the crime
based on past behaviour = propensity to commit the crime based on psychiatric profile; (3) accordingly,
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expert evidence cannot be introduced by the Crown if it will only show propensity; (4) rather, the expert
evidence will be admissible if a) it is relevant to another issue, and b) its probative value on that issue
outweighs it prejudicial effect on the propensity issue; (5) relevance for identity likely would require that
the expert evidence shows that the accused shared a “distinctive unusual behaviour trait with the
perpetrator of the crime” and that distinctive unusual behaviour trait “operates virtually as a badge or
mark identifying the perpetrator” (CB 423); (6) in this case, M’s schizophrenia diagnosis was insufficient
as it did not establish that he was a member of a subset of schizophrenia that have the tendency or
capability to commit the crime in its abnormal manner
R. v. McMillan (ONCA 1975)
Case Details
Facts: M acquitted of the murder of his 2 ½ y/o daughter; psychiatrist testified that Mrs. M was a
psychopath and a psychopath would be a danger to her child; trial judge did not permit Crown to crossexamine on the diagnosis or to call respondent evidence as to the “mental state or mental condition” of
M
Decision: appeal allowed and new trial ordered
Reasons: (1) self-evident that a defence is to establish that someone else committed the crime, and
evidence is regularly admitted that a 3rd party had motive or made threats against the deceased; (2)
evidence admitted under this principle must a) be relevant, and b) have sufficient probative value to
justify its admission; (3) the below policy considerations are not raised in a consideration of the
relevancy of the disposition of a third party (provided the evidence would be admissible as relevant, i.e.
the third party is connected to the crime); (4) in this case, Mrs. M had motive and access therefore her
disposition was relevant to the trier of fact; (5) the psychiatric evidence was admissible because her
disposition was relevance and the description of her personality traits were within the expertise of the
psychiatrist; (6) however, the Crown was entitled to call other expert evidence because essentially the
defence was that there was a psychopath—Mrs. M—in the house with a person of good reputation—
M—which could present a distorted perception if the Crown had evidence of M’s psychopathy; (7) while
the psychiatrist who testified with respect to Mrs M likely wouldn’t have changed things, there was
some indication from an assessment of M’s ability to stand trial that other evidence was available
Policy Considerations: (1) exclusion of character evidence is not often on grounds of probative value
but rather a concern that it will raise “undue prejudice”, distract from the issues or add too much time to
the case
R. v. Scopelliti (ONCA 1981)
Case Details
Facts: S (variety store and gas station owner) acquitted of second degree murder of two men killed by
shots fired from S’s hand-gun in his store; principal defence was self-defence (although jury also left
with defences of provocation and excessive force in self-defence); prior history between S and the
deceased (spitting on store floor; breaking a light about the store window; theft of 5 gallons of gasoline;
trial judge permitted defence evidence that the deceased had acted violently or threatened violence
against third parties (when this information was not known to S at the time of the incident) to support
S’s evidence
Decision:
Reasons: (1) when self-defence is raised, evidence of the deceased behaviour towards third parties
(known to the accused) is admissible to show the reasonable apprehension of violence as well as the
deceased’s reputation for violence; Drouin, Scott; (2) while the same information (if not known to the
accused) is not relevant to the accused’s apprehension of violence, the evidence may support the
probability that the deceased was the aggressor (and that the accused was attacked by the deceased);
(3) limitation: there must be some other evidence of the deceased’s aggression on the occasion in
question (lest the accused be acquitted because the deceased was a “bad person”); however, this
limitation may arise from the accused’s evidence; (4) no rule that the disposition of a third party to
violence, when relevant to an issue in the case, is inadmissible; (5) according, the disposition of a third
party to violence, if relevant and otherwise admissible, may be established by a) reputation evidence,
b) specific acts, and c) psychiatric evidence if the disposition is within the proper sphere of expert
evidence; (6) in this case, the jury was in a better position to determine whether the accused had a
reasonable apprehension of bias and otherwise met the requirements for self-defence
Policy Considerations: (1) the test does not require the preconditions for admissibility of similar fact
Key Concepts
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Key Concepts
 QUESTION: in
determining admissibility
of this evidence, doesn’t
it require that the judge
make a determination on
the credibility of the
accused’s evidence (if
it’s the other evidence to
support the defendant’s
aggression)?
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evidence because the policy rule (conviction based on character not facts) is inapplicable to a third
party
Similar facts
Makin v. Attorney-General for New South Wales (JCPC 1894)
Case Details
Facts: Mr and Mrs accused of murder of an infant; information introduced at trial that the bodies of
infants were found buried at the other residences of the accused, and that that the accused had
adopted other children than the one that they admitted adopting
Decision: appeal dismissed
Reasons: (1) Crown cannot introduce evidence to adduce evidence that the accused are guilty of
criminal acts other than the one in the indictment; (2) however, the mere fact that the evidence shows
this potential does not make the evidence inadmissible if it is relevant to an issue before the jury; (3) in
this case, it was not irrelevant that the accused had adopted other children nor that other bodies were
found in a similar manner to the one on the indictment
Policy Considerations: (1) inappropriate to suggest the conclusion that past guilty acts indicate guilt on
this act
R. v. Smith (UKCA 1915)
Case Details
Facts: S had married three women who were all found dead in their baths and he benefited financially
from their deaths; S charged with the murder of first wife; defence suggested that she drowned
accidentally; Crown introduced evidence that S subsequently killed his next two wives
Decision: appeal dismissed
Reasons: (1) evidence of the other two deaths was properly admitted and the jury was properly
instructed as to how the evidence could be used; (2) two other deaths were used to dispute S’s
contention that it was an accidental drowning
Policy Considerations: (1) bracketed the similar fact evidence question as it appears that it was not
properly argued on appeal
R. v. Straffen (UKCA 1952)
Case Details
Facts: Straffen was convicted of murdering two girls but he was committed to Broadmoor due to
insanity. He escaped Broadmoor and was convicted of killing a young girl during the four hours he was
at large. Crown sought to admit Staffen’s involvement in the previous 2 deaths, which he had more-orless admitted. Trial judge admitted the evidence.
Decision: evidence was admissible
Reasons: (1) general rule = this type of evidence is admissible; (2) however, there are exceptions when
the evidence would show that the accused committed the offence in the indictment (as opposed to
having a criminal propensity); (3) in this case, there were striking similarities between the three murders
including victim type, method (manual strangulation), lack of sexual interference, no evidence of a
struggle and no attempt to hide the body; (4) purpose of the evidence was to identify Straffen (not to
show that he is a professional strangler); (5) “abnormal propensity” is a form of identification; (6)
Thompson: abnormal propensity = homosexuality; (7) limitation = evidence needs to be sufficiently
unique to support the inference that it is adduced for (i.e. identity)
Policy Considerations: (1) do not want to support the interference that the accused has a criminal
disposition or has a propensity to commit a particular type of offence
Sweitzer v. The Queen (SCC 1982)
Case Details
Facts: Over 4 ½ years, there were 15 sexual assaults in Calgary against various women. The accused
was arrested inside a woman’s apartment and charged with the 15 sexual assaults. Defence applied for
a severance, which the trial judge granted. Crown applied to introduce the evidence of the other 14
charges in the trial on count 1. Survivor in count 1 could not identify her attacker and there was no
evidence supporting identification independent of the similar fact evidence. 11 of the other charges did
not have evidence of identification (save for similarities between the incidents). 3 of the other charges
(and a fourth incident) have direct evidence of identification (2 = survivor identification and 1 = arrest
incident).
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Issue: the identity of the person responsible for the alleged offences
Decision: only incidents in which there was direct evidence of identity was admissible
Reasons: (1) general principle = Makin; (2) model after Makin has been to identify categories of
admissibility based on the purpose for which the evidence is adduced (including to prove intent, to
prove a system, to prove a plan, to show malice, to rebut the defence of accident or mistake, to prove
identity, and to rebut the defence of innocent association); (3) however, the categorization approach
overlooks the general principle [admissibility when the probative value exceeds its prejudicial effect] 
categories are only illustrations of the principle; (4) to be admissible, there must be a link between the
allegedly similar facts and the accused (Harris v. Director of Public Prosecutions, UKCA 1952); (4) in
this case, the 11 charges without evidence of identification are inadmissible because they are not
relevant as evidence against the accused (i.e. similarity ≠ admissibility); (5) do not admit the 11
charges “on the coattails” of the other 4 charges that have some evidence of identification: (6)
admissibility requires “some evidentiary link, direct or circumstantial, with the accused” (CB 446)
R. v. B. (C.R.) (SCC 1990)
Case Details
Facts: B was accused of sexual offences against his natural daughter. The child testified. To support
her testimony, the Crown sought to admit evidence that B previously had a sexual relationship with the
daughter of his common-law wife (with whom he had a father-daughter relationship). The trial judge
admitted the similar fact evidence.
Issue: whether the alleged offences occurred (i.e. the credibility of the daughter’s testimony)
Decision: evidence was admissible
Reasons (majority, McLachlin J): (1) move away from the categorization approach to a general test that
balances the probative value against its prejudicial effect; (2) Canadian approach follows Boardman: a)
general presumption of inadmissibility, b) reject category approach in favour of general principle that
the probative value of the evidence must exceed its prejudicial effect, c) high deference to the trial
judge in balancing probative value against prejudicial effect due to its discretionary nature; (3) factors
considered in the balancing = a) degree of distinctiveness, connection to issues other than propensity,
moral repugnance of the alleged similar facts; (4) in this case, the trial judge misstated the purpose to
which the similar fact evidence was adduced, which is not an error that vitiates the ruling but does point
out the importance of clearly stating the issue; (5) corroboration may be a valid purpose from similar
fact evidence; (6) some differences between the alleged incidents and the alleged similar fact evidence
(i.e. age, blood relation, sexual maturity, lapse in time) but these differences are not necessarily
failures; (7) similarities including the presence of a father-daughter relationship; (8) likely borderline
whether the probative value exceeds the prejudicial effect but not sufficient to
Policy Considerations: (1) Canadian jurisprudence still rejects evidence that goes merely to disposition
or propensity
Reasons (dissenting, Sopinka J): (1) probative value = capable of supporting an inference relevant to
an issue in the case (and other than the inference that the accused has a criminal disposition); (2)
“logically relevant evidence” is still excluded if the prejudicial effect outweighs the probative value; (3)
distinguish legally probative from logically probative; (4) purpose of the exclusionary rule = forbidden
inference that the accused is guilty due to propensity; (5) cannot accept that propensity can have a
probative value that exceeds its prejudicial effect; (6) distinguish “general character and modus
operandi” (CB 452) where general character = forbidden inference and modus operandi = relevance
beyond propensity; (7) when (as in this case) the evidence in question could support both general
character and modus operandi, the trial judge must determine whether the permissible inference will
justify the introduction of the impermissible evidence; (8) in this case (and other cases in the “sexual
field”), the evidence must be more than similar and absent corroboration; (9) reasons for caution in this
case: only two girls, significant separation of time, material differences; (10) to admit this evidence
would be to set the bar so low that it is “virtually non-existent” (CB 455)
R. v. Arp (SCC 1998)
Case Details
Facts: accused was charged and convicted of the first degree murder of two women; first woman was
seen getting into a vehicle and not seen again until her body was found by a skier in a clearing (but
could not establish cause of death beyond “homicidal violence”); accused’s vehicle matched the
description and the woman’s ring and fibers from her sweater found in vehicle; second woman
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disappeared 4 years later; body discovered the next day and DNA matched accused; trial judge
admitted the facts in each charge as similar fact evidence going to the identity in the opposite charge
Decision: evidence was admissible
Reasons: (1) similar fact evidence is an “exception to an exception” (generally all relevant evidence is
admissible but generally all evidence that goes to disposition or propensity is inadmissible); (2) prefers
articulation in Morris to Boardman: disposition evidence that is of no relevance is inadmissible as
irrelevant but disposition evidence with some probative value is inadmissible due to the similar fact
evidence “rule”; (3) similar fact evidence may be admissible with respect to the issue of identity if it
establishes that the accused is the person who committed the alleged offence (as opposed to the type
of person who would commit such an offence)  such as when the past acts have “striking similarity to
the alleged crime” (CB 457); (4) risk of coincidence but this risk is reduced when the evidence
establishes “a distinct pattern”; (5) striking similarity is not that the accused is a member of an abnormal
class of persons who had the same propensities as the person who committed the offence but rather
that there is a distinguishing feature  admissibility is based on “an objective improbability of
coincidence” (CB 458); (6) striking similarity (rejected in B. (C.R.)) is based on the need for the
similarities to not be a product of coincidence to ensure sufficient probative value; (7) striking similarity
will derive from different factors in different cases: a “unique trademark or signature”, cumulative effect
of a number of “significant similarities”; (8) preliminary determination, therefore, considers what
similarity there is between the past acts and the alleged offence to establish the objective improbability
that the similarities are products of coincidence, which results in the requisite probative value for
admission; (9) jury instructions when evidence on one count is admitted for use in the other count: may
find that the manner of commission of the offences is so similar that it is unlikely they were committed
by different people; identify similarities; if the conclusion is that they are the same perpetrator, the jury
may use the evidence on each counts to decide whether the accused committed the other; use is for
the limited purpose for which it was admitted; evidence cannot be used to infer guilt; if they do not find
the same person likely committed all acts, they can still use the evidence on each count individually to
determine guilt; and cannot convict unless satisfied of guilt beyond a reasonable doubt [Simpson,
ONCA 1981, Sweitzer and D. (L.E.)]
R. v. Handy (SCC 2002)
Case Details
Facts: H charged with sexual assault causing bodily harm; complainant = acquaintance who alleged
consensual sex turned into non-consensual sex and physical abuse; trial judge admitted similar fact
evidence from H’s ex-wife who alleged similar incidents over the course of their 7 year relationship
(interpreted by his incarceration for unrelated sexual assaults) that produced 3 children
Decision: alleged similar fact evidence was inadmissible
Reasons: (1)
Policy Considerations:
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Index of Cases
PART I: BASIC CONCEPTS
Witnesses: Competency, Compellability, and Direct and Cross-Examination
Oaths and Affirmations
Case
Ct./Yr.
Short Description
R v Bannerman
R v Walsh
MBCA 1966
ONCA 1978
Child. Did not need to know Divine punishment to testify. Conseq.= know the moral obligation.
Satanist. Solemn affirmation = Religious Oath
Source
Case
Ct./Yr.
Short Description
R v Lyttle
SCC 2004
Cross examine = anything as long as good faith + not harassing
Case
Ct./Yr.
Short Description
R v Salituro
SCC 1991
R v Hawkins
SCC 1996
Spouse competent to testify for prosecution when policy reasons for incompetency are gone due
to irreconcilable breakdown
Police officer who married girlfriend to make her incompetent to testify. As long as the marriage is
legally valid, this is an ok practice
Case
Ct./Yr.
Short Description
R v Bannerman
MBCA 1966
R v Khan
R v DAI
SCC 1990
SCC 2012
R v Marquard
SCC 1994
Child has mental capacity to testify ... 12 & grade 4 = ok to testify. Ok = as long as they can
appreciate + assume a moral obligation
There is no lower age limit on ability to testify; Goes to weight.
Women with mental abilities of 3-6 yr old. Adult witness who can communicate but can’t give oath
can give unsworn testimony 16(3)
Lighter burns to child. Ability to be able to give “adequate testimonial capacity”, but no need to
inquire into memory of events
Case
Ct./Yr.
Short Description
McConnell and Beer v The Queen
SCC 1968
R v Noble
SCC 1997
R v Prokofiew
ONCA 2010
(in obiter) – the judge may NOT comment on the accused’s failure to testify in any situation – but
the defense can generally
No adverse inference from accused’s failure to testify UNLESS they use alibi defense or (Sopinka)
the case has been proven BRD
Judge may mention the accused’s failure to testify BUT cannot be held negatively against the
accused
CB 45
CB 48
Examining Witnesses
Source
CB 81
Spousal Competency and Compellability
Source
CB 22
CB 28
Challenging Mental Capacity
Source
CB 45
CB 54
Supp 1
Accused’s Failure to Testify
Source
CB 63
CB 68
Relevancy, Probative Value and Prejudicial Effect
Relevancy
Case
Ct./Yr.
Short Description
R v Watson
ONCA 1996
R v Morris
SCC 1993
A victim’s evidence of regularly carrying a gun is evidence relevant to whether he was a participant
in a gun fight
Newspaper clipping on heroin relevant – the link is logically (but feeble) relevant BUT real question
= weight attributed
Case
Ct./Yr.
Short Description
R v Seaboyer
SCC 1991
Rape-shield laws. A woman’s sexual-history no longer relevant to issues of consent & credibility.
Court discretion to admit under s.7
Source
CB 87
Moodle
Probative Value and Prejudicial Effect
Source
CB 96
The Burden and Quantum of Proof
Burden and Degree of Proof in Criminal Proceedings
Case
Ct./Yr.
Short Description
Source
Pappajohn v The Queen
R v Cinous
SCC 1980
SCC 2002
CB 806
CB 806
R v Stone
SCC 1999
R v Fontaine
R v Lifchus
SCC 2004
SCC 1997
R v Starr
R v Morin
R v Challice
SCC 2000
SCC 1988
ONCA 1979
Air of reality. If evidence is assumed to be true, enough to raise “air of reality”
Air of reality = legal decision that can be error of law. Error of law to put evidence to jury w/
insufficient evidentiary basis + vice versa
Air of reality. Non-insane automatism = defence has evidentiary (air of reality) and persuasive
(balance of probabilities) burdens
Air of reality – The Evidentiary burden in Stone = evidentiary burden in Cinous
Gold standard. Sufficiency of instruction = charge as a whole not just whether missing a word from
the gold standard
Proof BRD = significantly more than BPD but short of absolute certainty
Trial judge suggested that BRD applied to all evidence rather than totality – that is WRONG. De
DO NOT need to choose between crown or defense case – an acquittal means cannot be proven
guilty BRD
CB 808
CB 809
CB 809
CB 816
Law 309: The Law of Evidence
R v. W(D)
SCC 1991
R v JHS
SCC 2008
G. Morgan (Foster, Spring 2013) | Page 81
Jury instruction = (1) if you believe accused you acquit (2) if you don’t believe but raises BRD you
must acquit (3) If not doubt of the evidence of accused, must consider if totality of evidence = BRD
The W(D) questions might be too simplistic – it must be crystal clear that the burden never shifts
from the crown to prove BRD
CB 820
Presumptions and Reverse Onuses
Case
Ct./Yr.
Short Description
Source
R v Oakes
SCC 1986
The accused is presumptively innocence. “Typology of presumptions”
CB 825
Case
Ct./Yr.
Short Description
Source
Stein v The “Kathy K”
SCC 1976
CB 835
R v Biniaris
SCC 2000
Findings of the trial judge are not to be reversed unless = the learned trial judge made a palpable
and overriding error
The question of the reasonableness of a conviction = a question of law
Appellate Review of Factual Findings
CB 838
PART II: EXCLUSIONARY RULES BASED ON UNRELIABILITY AND PREJUDICIAL EFFECTS
Hearsay: The Rule, the Exceptions and the Principled Approach
Hearsay: Classification and Principles
Case
Ct./Yr.
Short Description
Source
Subramaniam v Public Prosecutor
JCPC 1956
CB 130
R v Wildman
ONCA 1981
Creaghe v Iowa Home Mutual
Casualty Co
US 10th
Circ. 1963
Out of court statement BUT not adduced for their truth but rather their existence and the accused’s
belief in their existence
Phone call re: daughter’s death = NOT hearsay if not being adduced for its truth but how one
came to learn of its contents
Cancelled K – performance utterances = words that have legal effect
Wright v Tatham
R v Wsysochan
UK Exch.
Ct. 1837
SKCA 1930
R v MacKinnon
ONCA 1989
CB 132
CB 137
Implied Assertions and Hearsay by Conduct
Admitted as statements of mind (circumstantial), so not hearsay. Also provides the defines Implied
Assertion: asserts facts as true that are relevant to the matters in dispute
Talking to your husband after you’ve been shot by someone = adduced for what it indicates (warm
to husband)
Not hearsay – merely pointing to the grave. Hearsay applies to statements/actions intended to be
assertions
CB 139
CB 145
CB 147
Traditional Exceptions to the Hearsay Rule: Statements against Interest
Case
Ct./Yr.
Short Description
Source
R v O’Brien
R v Pelletier
Lucier v The Queen
SCC 1978
ONCA 1978
SCC 1982
Declarations against penal interest have a more stringent test – used her as a defense
Is a statement partly inculpatory/exculpatory admissible – it was admissible as overall exculpatory.
A person’s penal interest will qualify for the exception against hearsay IF brought by the accused &
NOT if it is brought by the crown
CB 165
CB 168
CB 170
Traditional Exceptions to the Hearsay Rule: Testimony from Prior Judicial Proceedings
Case
Ct./Yr.
Short Description
Source
R v Potvin
SCC 1989
Leading case on the interpretation of s. 715
CB 172
Traditional Exceptions to the Hearsay Rule: Statements concerning Bodily and Mental Condition
Case
Ct./Yr.
Short Description
Source
Youlden v London Guarantee and
Accident Co
Ont. HCJ
1910
Best evidence of the accused’s condition was the statements made by the accused prior to his
death
CB 179
Traditional Exceptions to the Hearsay Rule: Statements of Intention
Case
Ct./Yr.
Short Description
Source
Mutual Life Insurance Co v Hillmon
USSC 1892
CB 181
R v Wainwright
R v Thomson
R v P(R)
US 1875
UKCA 1912
Ont. HCJ
1990
Insurance says body was not husband, but letter writer; Letter was admissible to show intent; High
water mark.
You can ask a witness if another party responded to your question, but not the contents (hearsay)
Statement of intention to perform abortion on self was not admissible in trial of abortion doctor.
Woman who said she wanted to leave her spouse – explicit statements of the mind are admissible
if those statements permit an inference & regarded as original intention evidence and nothing else
CB 183
CB 184
CB 185
Traditional Exceptions to the Hearsay Rule: Spontaneous Utterances
Case
Ct./Yr.
Short Description
Source
R v Bedingfield
Ratten v The Queen
R v Clark
US 1879
JCPC 1972
ONCA 1983
Throat slit – it is hearsay, not res gestae (nor a dying declaration) as it was NOT contemporaneous
A statement of a rattled female voice to 911 operator requesting police
Will be admitted if related to (1) startling event (2) made while excited by the event ... doesn’t have
to be perfectly contemporaneous
CB 154
CB 156
CB 160
Case
Ct./Yr.
Short Description
Source
Myers v DPP
UKHL 1965
VIN number “carved” into engine block – Not allowed under business records; dissent says this is
stupid.
CB 194
The Principled Approach to Hearsay: False Starts
Law 309: The Law of Evidence
G. Morgan (Foster, Spring 2013) | Page 82
Ares v Venner
SCC 1970
Broken ski leg resulted in amputation. The records, following the dissent in Myers, permitted under
a new exception
CB 199
Case
Ct./Yr.
Short Description
Source
R v Khan
SCC 1990
Beginning of the Principled approach in Canada – concern with reliability and necessity
CB 202
Case
Ct./Yr.
Short Description
Source
R v Smith
SCC 1992
CB 206
R v Marpara
R v B (KG) [KGB]
SCC 2005
SCC 1993
R v Hawkins
SCC 1996
R v Starr
SCC 2000
R v Khelawon
SCC 2006
R v Baldree
R v Jesse
ONCA 2012
SCC 2012
Four phone calls made to mother. 2 in, 3rd out. Look for exceptions to hearsay before employing
principled approach.
Sets out the relationship between the traditional exceptions and the principled approach
Kids stab a guy for no reason. Prior inconsistent statements, when used for their truth is hearsay
but may be admissible under the principled approach if not an exception to hearsay isn’t already
available.
Confirm a residual ability to throw out evidence or let it in. Threshold liability does NOT equal
reliability (weight)
Autopac scam. Hearsay exceptions continue to apply but must conform to principles of the
principled approach necessity + reliability
Man injured in retirement home. Statements made were unreliable, not permitted under the
principled approach
Cops in apartment, pick up phone, someone asks for drugs. This created an implied assertion.
Past convictions by jury for the use of SME/identify is not hearsay
The Principled Approach to Hearsay: The Revolution
The Principled Approach to Hearsay: The Aftermath
CB 212
CB 225
CB 231
CB 245
Supp 18
Supp. 33
Opinion Evidence: Lay and Expert
Lay Opinion
Case
Ct./Yr.
Short Description
Source
R v Graat
SCC 1982
Two exceptions: (1) Ordinary matters (2) Multiple perceptions. Lay persons (PO) can give opinion
on ultimate issue if factual.
CB 261
Case
Ct./Yr.
Short Description
Source
R v Mohan
SCC 1994
CB 267
R v Lavallee
SCC 1990
Daubert v Merrell Dow Pharma.
Béland v The Queen
USSC 1993
SCC 1987
Dr. Charged with sexually assault of 4 girls.Expert: only a sexual psychopath and paedophile could
commit crimes;not admissible ; Expert Opinion must be Necessary, Qualified, Relevant and Not
Excluded
Self-defense in a domestic homicide. Expert opinion necessary to understand how shooting the
back of the head = self-defense
Leading case on US rule 702. the
Polygraph evidence Primary issue is the use of old science used in a new way. Defense wanted to
show
Case
Ct./Yr.
Short Description
Source
R v Abbey
SCC 1982
CB 203
R v Lavallee
SCC 1990
Peru Astro-Travelled. Cannot use experts to get in otherwise hearsay evidence, can inform
opinion.
Cannot use experts to get in otherwise hearsay evidence, can inform opinion.
Expert Opinion
CB 274
CB 291
CB 298
Procedural and Reform Issues: Expert Opinion and Hearsay
CB 309
Assessing, Supporting and Impeaching Credibility; and the Limits on Each
Limits on Supporting Credibility: Expert Evidence
Case
Ct./Yr.
Short Description
Source
R v Kyselka
SCC 1962
CB 324
R v Marquand
SCC 1993
Sexual assault of 16 y/o “mentally retarded” girl. No oath helping. General statement was ok but
not “she did remarkably well”
Expert evidence can only be relevant to the credibility of a witness and NOT ABOUT the credibility
of a witness
Case
Ct./Yr.
Short Description
Source
R v Clarke
ONCA 1998
Old people drama (Viagra/guns). Transient community sufficiently “community” to give reputation
evidence. Witness CAN be asked about the reputation (and thus credibility) of the accused;
however, CANNOT be asked if they would believe the accused under oath
CB 329
Case
Ct./Yr.
Short Description
Source
R v D(D)
SCC 2000
CB 335
R v Edgar
ONCA 2010
Young girl sexually assaulted, delay in complaint. Expert evidence was not necessary here, s. 275
dealt with adverse inferences.
Prior consistent statements relevant to the accused’s state of mind
Case
Ct./Yr.
Short Description
Source
Toohey v Metro Police Comm
UKHL 1965
Expert evidence can attack reliability but not credibility of the individual
CB 344
CB 325
Limits on Supporting Credibility: Good Reputation for Veracity
Limits on Supporting Credibility: Prior Consistent Statements
CB 338
Impeaching Credibility: Expert Evidence
Law 309: The Law of Evidence
G. Morgan (Foster, Spring 2013) | Page 83
Impeaching Credibility: Witness’ Bad Reputation for Veracity
Case
Ct./Yr.
Short Description
Source
R v Clarke
ONCA 1998
Old people drama (Viagra & guns). Witnesses giving reputation evidence of the accused’s
reputation isn’t generally up for cross-ex
CB 348
Case
Ct./Yr.
Short Description
Source
R v Corbett
SCC 1988
Guy accused of murder. Had been convicted of murder before. Admissible? CEA s. 12 says yes
but s. 11 of Charter gives discretion
CB 362
Case
Ct./Yr.
Short Description
Source
R v Melnichuk
ONCA 1995
Guy pretends to be a CA. You can only discuss collateral facts in cross-examination, judicial
discretion to admit proof
CB 375
Case
Ct./Yr.
Short Description
Source
R v Baskerville
Vetrovec v The Queen
UKCA 1916
SCC 1982
Dangerous to convict on the uncorroborated evidence of a co-accused.
Co-accused’s pointing to the other over heron import.The need to give a warning is “discretionary”
but not really as it could be an error of law to give it when not needed and vice versa
CB 381
CB 383
Prior Convictions and Credibility
Collateral Facts
Corroboration
Character, “Similar Facts” and Related Issues
Character Evidence
Case
Ct./Yr.
Short Description
Source
R v McNamara et al (No 1)
ONCA 1981
CB 397
R v Rowton
UKCA 1865
R v Levasseur
ABCA 1987
R v Profit
SCC 1992
R v Robertson
ONCA 1975
R v Mohan
SCC 1994
R v Morin
SCC 1988
R v McMillan
ONCA 1975
R v Scopelliti
ONCA 1981
R v Jesse
SCC 2012
13 individuals/corporation charged with fraud. McNamara put character in issue when he said the
company was run “legally”
School master accused of sexual assault. Witnesses can only speak of the accused’s reputation
generally, not of their personal specifics; however in reality witnesses DO give evidence of
specifics (says Foster)
Accused wanted to use work-mates to buttress her character. Can this fit the traditional Rowton
rule? YES
Principal charged w/ sexual assault & had 22 witnesses to attest to his “high moral character”. Not
relevant for this crime: convicted
16 yr old killed 9 yr old. Cannot adduce expert evidence to speak to someone’s character unless
exceptional circumstances
Dr. Facing charges of sexual assault & wanted to show only a psycho-path could do it and he
wasn’t a psychopath. NOT admissible
PV vs. PE should be applied to expert evidence on character; not admissible that a schizophrenic
may kill in such a manner
2.5 week baby killed. Husband charged; adduced evidence wife was psychopath; Error: Crown not
allowed rebuttal psych evidence.
Character evidence of the victim not known to the accused is admissible for self-defence, but puts
accused character in play.
Principled approach.
CB 402
CB 403
CB 405
CB 416
CB 418
CB 422
CB 424
CB 430
Supp 47
Similar Facts
Case
Ct./Yr.
Short Description
Source
Makin v AG (New South Wales)
JCPC 1894
CB 437
R v Smith
UKCA 1915
R v Straffen
UKCA 1952
Having a few backyards full of the bodies of babies is similar fact evidence when investigating the
death of another baby
Having two wives drowned in a bathtub is similar fact evidence in an investigation of the third wife
drowning in a bathtub.
Convictions in two deaths are similar ( young girls, strangled, no sexual motive, no struggle, no
concealment); admissible in 3rd.
R v McFadden
Sweitzer v The Queen
BCCA 1981
SCC 1982
R v B(CR)
R v Arp
SCC 1990
SCC 1998
R v Handy
SCC 2002
11 nocturnal rapes in Calgary inadmissible as they lack evidentiary link to accused; 4 not ruled on
(new trial),
Omitted from readings
2 women found dead in snow, multi-count. “Is accused the type of person” not allowed. “Is
accused the very person?” allowed;
Similar Fact evidence rules set out. Similar fact evidence related to actus rea was disallowed due
to possible collusion
CB 439
CB 440
Moodle
CB 443
CB 447
CB 456
CB 460
PART III: EXCLUSIONARY RULES BASED ON POLICY
Improperly Obtained Evidence and the Privilege against Self-Incrimination
Common Law Confessions Rule
Case
Ct./Yr.
Short Description
Source
R v Rothman
SCC 1981
Hashish; confess to undercover officer in cell, not a person in authority, not shocking trickery no
“Marquess of Queensbury” rules
CB 490
Law 309: The Law of Evidence
G. Morgan (Foster, Spring 2013) | Page 84
R v Hodgson
SCC 1998
Person with authority over prosecution, can be but usually not parent, boss, psychiatric or “Mr Big”
or complainant and family
Confession to a Mr Big is not a confession to person in authority even if the person says they
influence the prosecution illegally
Confession to father of assaulted children admissible even if he held bread knife to throat and
punched him
Confession to PO directly following a single vehicle accident was voluntary
“fog in the brain” still operating mind with “Cognitive capacity to understand what he..is saying and
what is said [and caution]”
“A man’s trousers are… essential to his dignity”; statement inadmissible as involuntary
Principled approach.
Inadmissible confession, but parts that are directly verified by physical evidence are admissible
CB 496
R v Grandinetti
SCC 2005
R. v Wells
SCC 1998
Ward v The Queen
R v Whittle
SCC 1979
SCC 1994
R v Serack
R v Oickle
Rex v St Lawrence
BCSC 1974
SCC 2000
ONHC
1949
Case
Ct./Yr.
Short Description
Source
R v Collins
R v Grant
R v Harrison
R v Calder
SCC 1987
SCC 2009
SCC 2009
SCC 1996
CB 562
CB 568
CB 584
CB 590
R v Côté
SCC 2011
PO grabbing woman by throat in bar with no RPG. Administration of justice into disrepute? -Yes
“Detained” black man, 10(b) violated, gun found; Gun excluded under 24(2). Refines 24(2) test.
35 kg of cocaine found during groundless stop and illegal search not admissible despite reliability
PO attempts hire 17 year old prostitute; 10(b) violated; Admission of statement would bring justice
into disrepute
“flagrant and systemic” violations of s 8. Meant that statements by Mrs. Cote were excluded
Case
Ct./Yr.
Short Description
Source
R v Henry
R v Nedelcu
SCC 2005
SCC 2012
Use of witness testimony in other proceedings and s. 13; SCC openly overrules itself
Muddies s. 13
CB 597
Moodle
Case
Ct./Yr.
Short Description
Source
Pritchard v Ontario
SCC 2004
CB 620
Smith v Jones
R v Brown
SCC 1999
SCC 2002
HR complainant claimed no solicitor-client and ITA common purpose on denial; Not found;
Solicitor Client privilege intact.
Plan to kill prostitutes is a public safety exception to S-C privilege. Test set out
3rd party confessed to lawyer; Innocence at Risk exception to S-C very, very high bar to meet.
Case
Ct./Yr.
Short Description
Source
Blank v Canada
SCC 2006
S-C is not same as litigation privilege
CB 648
Case
Ct./Yr.
Short Description
Source
R v Leipert
SCC 1997
Informer privilege is sacrosanct; Crown will issue stay of proceeding rather than break with few
exceptions
CB 658
Case
Ct./Yr.
Short Description
Source
R v Couture
SCC 2007
Spousal privilege is separate from spousal competence or compellability;
CB 688
CB 507
CB 506
CB 510
CB 512
CB 516
CB 517
CB 532
Confessions, the Charter and the Exclusion of Evidence
Supp. 48
Privilege against Self-incrimination
Privilege and Related Issues
Solicitor Client Privilege
CB 627
CB 636
Litigation Privilege
Informer Privilege
Marital or Spousal Privilege
Other Relationships, Protecting Privacy without Privilege and Implied/Deemed Undertakings
Case
Ct./Yr.
Short Description
Source
Slavutych v Baker
R v Gruenke
M(A) v Ryan
R v O’Connor
Juman v Doucette
SCC 1976
SCC 1991
SCC 1997
SCC 1995
SCC 2008
The Wigmore Criteria were been applied; no privilege; and the jerky tenured prof lost his job
No class privilege for religious communications
No class privilege for psychiatrist-patient communications
Privacy without privilege
Daycare; The police wanted the discovery evidence but protected by implied undertaking
CB 693
CB 696
CB 702
CB 709
CB 723
PART IV: PROOF WITHOUT EVIDENCE
Admissions and Judicial Notice
Judicial Notice of Facts
Case
Ct./Yr.
Short Description
Source
R v Spence
SCC 2005
CB 788
R v Bartleman
BCCA 1984
need for reliability … increase directly with the centrality of the fact to the disposition of the
controversy”
legislative fact in order to assist in the legal interpretation of a treaty
Moodle